Medical marijuana's effect on employment law: the highs, the lows, and the unanswered questions.

• Author: Hearing, Gregory A.

After a narrow defeat in 2014, Florida's Amendment 2 cruised to a landslide victory in November, bringing Florida in line with 27 other states that have legalized at least some form of marijuana use. The state constitutional amendment, which passed with more than 71 percent of the vote, allows medicinal marijuana use by people with debilitating medical conditions, as prescribed by a licensed Florida physician. The new amendment, which became part of the Florida Constitution on January 3, was the natural extension of 2014's "Charlotte's Web" law, Florida's first, much-delayed, and minimal foray into medical marijuana. (1)

The amendment's passage signaled only the beginning of a likely protracted legislative battle over the finer points of medical marijuana in Florida:

* Who will qualify to use marijuana medicinally?

* To what levels of tetrahydrocannabinol (THC) will the marijuana be limited?

* How will local ordinances affect marijuana distribution?

* Will the amendment conform to the wait-period requirements, installed by the state's preexisting "Charlotte's Web" law?

* And for labor and employment lawyers, how does the addition of medical marijuana to an employee's medical cabinet affect the rights of employers?

These questions likely will not be answered for some time, as the Florida Legislature still has to pass enabling legislation, and the state Department of Health must promulgate administrative rules by no later than July 2017. Before analyzing the amendment's effects on employers' rights, it's important to understand the facial provisions of the amendment and how those provisions may change as the legislature begins to regulate medicinal marijuana use in Florida. Chief at issue is who, exactly, will qualify for use of medicinal marijuana under the amendment. The amendment, the chief purpose of which is to protect the marijuana's qualified user and designated distributor from civil and criminal liability, states that a qualified user is "a person diagnosed with a debilitating medical condition in compliance with this section." (2) "Debilitating medical condition" is defined as the following:

* Cancer

* Epilepsy

* Glaucoma

* HIV

* AIDS

* Post-traumatic stress disorder

* ALS

* Crohn's disease

* Parkinson's disease

* Multiple sclerosis

* "[O]ther debilitating medical conditions of the same kind or class or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient." (3)

The scope of "other debilitating medical conditions" will likely be the subject of controversy both in the legislature and the courtroom. While the amendment enumerates 10 diseases and disorders, the "other debilitating medical conditions" clause leaves open the potential for a vast array of other medical conditions to come within the purview of legal medical marijuana use.

We cannot predict with absolute certainty which diseases or disorders will fall into the "other debilitating medical conditions" category, but we can look at other states in which medical marijuana laws use similar ambiguous language as a catch-all provision. In Colorado, the state constitution defines "debilitating medical condition" as any disease or condition that produces conditions such as cachexia; severe pain; severe nausea; seizures, including those that are characteristic of epilepsy; or persistent muscle spasms, including those that are characteristic of multiple sclerosis. (4) Washington law is even more broad, defining the phrase as including "diseases, including anorexia, which result in nausea, vomiting, wasting, appetite loss, cramping, seizures, muscle spasms, or spasticity, when these symptoms are unrelieved by standard treatments or medications." (5)

It is important to distinguish the "debilitating medical condition" phrasing from more liberal statutory wording, such as California's "serious medical condition," which includes migraines, arthritis, and intangible or undiagnosable symptoms like muscle spasms. (6) Perhaps no state medical marijuana law is as broad in its covered symptoms as California, and Florida--absent a serious legislative overhaul of the medical marijuana law's language--will likely not follow in California's footsteps. With that in mind, based on Washington's and Colorado's interpretations of "debilitating medical condition," odds are good that Florida's medical marijuana law will mirror those states' covered symptoms to some degree.

Americans with Disabilities Act

Title I of the Americans with Disabilities Act (ADA) prohibits employers with 15 or more employees from discriminating against disabled employees. Under the ADA, disability is defined as "a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such impairment, or a person who is perceived by others as having such an impairment." (7) An employee may bring a claim under the ADA if he or she is a "qualified individual" with a disability, defined as someone with a disability who--with or without reasonable accommodation--can perform the essential functions of the job at issue. (8)

If an employee is a qualified individual with a disability, the employer is required to provide reasonable accommodations to the employee so that he or she may perform the essential functions of the job. An employer, although not required to monitor the use of medication, may still be required to provide reasonable accommodation for a disabled employee who must take medication during his or her work shift. (9)

The ADA--notoriously broad in defining who is a qualified individual with a disability--includes a carve-out excluding any employee or job applicant "who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use." (10) Importantly, "illegal drugs" is defined not by state law, but rather the federal Controlled Substances Act (CSA).11 Although legal recreationally or medically in a majority of states, marijuana is a Schedule I hallucinogen under the CSA. As such, marijuana is illegal under federal law despite its varying levels of protection under state law.

Despite...