March 2, 2020

In 2016, Florida joined the ranks of states that legalized medical marijuana after voters approved a constitutional amendment, which led to the enactment of implementing statutes. Since then, more than three hundred thousand Floridians have become medical marijuana users under the protection of those laws. However, because medical marijuana use remains illegal under federal law, employers with operations in Florida have not had to contend with providing accommodations to employees who happen to be medical marijuana users.

Like more than ten other states that have employer anti-retaliation provisions, Florida may soon be changing. Both chambers of the Florida Legislature are currently considering proposed bills aimed at extending certain protections to Florida employees who are legal medical marijuana users – those proposed bills are H.B. 595 and S.B. 962, which are collectively entitled the Medical Marijuana Employee Protection Act. Both bills, if passed, would extend to both private- and public-sector employees and employment applicants in Florida. If passed, one of the new rights these bills would provide to employees is the right to sue an employer if the employer takes an adverse employment action due to an employee’s status as a legal medical marijuana user.

The only exceptions included in these bills are employees in “safety-sensitive” positions such as teachers, firefighters, police, and school bus drivers. “Safety-sensitive” is defined in each bill as including tasks or job duties that the employer reasonably believes could affect the safety and/or health of the employees performing those tasks or job duties, or that of other persons, including, but not limited to, the following:

The handling, packaging, processing, storage, disposal, or transport of hazardous materials;

The operation of motorized vehicles, equipment, machinery, or power tools;

The repair, maintenance, or monitoring of any equipment, machinery, or manufacturing process, the malfunction or disruption of which could result in injury or property damage;

The performance of firefighting duties;

The operation, maintenance, or oversight of critical services and infrastructures, including, but not limited to, electric, gas, and water utilities or power generation or distribution;

The extraction, compression, processing, manufacturing, handling, packaging, storage, disposal, treatment, or transport of potentially volatile, flammable, combustible materials, elements, or chemicals, or any other highly regulated components;

The dispensing of pharmaceuticals;

The carrying of a firearm; and

The direct care of a patient or child.

If the Florida Medical Marijuana Patient Protection Act passes, medical marijuana use could become a new protected class of job applicant and employee under Florida law. As such, employers would be required to justify a failure to hire an applicant who is a medical marijuana user as well as to justify an adverse employment action against an employee who is a medical marijuana user. The new law would also require employers to demonstrate that the employee’s ability to perform his or her job duties is impaired by his or her lawful use of medical marijuana. If an employer fails to do so, the affected employee can seek and obtain injunctive relief (including job reinstatement), money damages, and an award of his or her attorney’s fees.

Employers with operations in states that have legalized any aspect of marijuana use, be it medical or recreational, should begin taking steps to deal with the surge in anti-retaliation protections. One such step is taking inventory of job descriptions to ensure that all descriptions accurately reflect the job duties performed by the employee(s) filling each position. Employers can further begin taking stock of which jobs within their organization fall under the definition of “safety-sensitive,” as such jobs would be exempt from the protections of the Medical Marijuana Patient Protection Act.

It is currently unclear whether the Florida Medical Marijuana Patient Protection Act will actually become law in Florida. However, prudent employers with operations in Florida should track the bills’ progress through the Florida Legislature.