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eLABORate: Florida Provides Welcome New Guidance to Employers on Medical Marijuana

June 28, 2017

Florida has joined the rapidly-increasing number of states to legalize medical marijuana for the treatment of a broad class of “debilitating medical conditions.” On June 23, 2017, Florida Governor Rick Scott approved a bill setting forth implementation guidelines for the state’s recent constitutional amendment broadening access to legal medical marijuana.

Significantly, the new law does not limit an employer’s right to maintain drug free workplace policies, nor does it require the employer to accommodate the use of medical marijuana in the workplace. And, the law does not grant employees the right to sue employers for wrongful discharge or discrimination based on medical marijuana use.

Within the past decade, a number of other states have implemented similar medical marijuana laws. Though only a few courts have had the opportunity to interpret these laws, most have been in line with Florida’s express statutory language, refusing to excuse employees from their employers’ workplace drug policies —and in particular, the consequences of testing positive for marijuana—whether or not they are registered medical marijuana users under state law.

However, it is too soon to say whether or to what extent a national consensus will emerge. Last month, a Rhode Island Superior Court ruled in favor of a prospective employee who was not hired because she tested positive for marijuana in standard pre-employment drug screening. The employee was a registered medical marijuana patient who used marijuana only on an off-duty basis as recommended by her physician. The court held that the employer had violated the state’s medical marijuana law, and allowed the employee to proceed with her disability discrimination claim. Unlike previous cases in other states that have legalized medical marijuana, the Rhode Island court ruled that the employee was not engaged in “illegal drug use,” despite the fact that marijuana remains illegal for all purposes under federal law.

Medical marijuana is a rapidly-evolving area of the law, with each state enacting and interpreting its own unique statutory schemes. Employers—and particularly multi-state employers—are advised to remain apprised of the latest developments to assess and limit the risk of costly litigation over workplace drug policies.