Medical Marijuana's Effect on Employment Law: The Smoke is Clearing.

AuthorHearing, Gregory A.
PositionLabor and Employment Law

After Amendment 2 to the Florida Constitution passed in November 2016, allowing qualified physicians to issue a physician certification for the medical use of marijuana by individuals with debilitating medical conditions, a thick haze of unanswered questions arose. (1) These questions included: 1) Who would qualify to consume medical marijuana? 2) What maximum concentration of Tetrahydrocannabinol (THC), the chemical compound, which impairs the user, would be permitted? 3) How closely would the enabling statute mirror the original "Charlotte's Web" law, including the 90-day waiting period? 4) Would the statute provide a clear definition of other debilitating medical conditions? 5) Would local ordinances concerning medical marijuana be preempted by the Florida Legislature? 6) How would the new medical marijuana statute impact the rights of both employers and employees?

With the passage of enabling legislation via Senate Bill 8A on June 9, 2017, and the subsequent signing of the bill by the governor on June 23, 2017, (2) the smoke has begun to dissipate as we now have answers to several of these questions. However, the answers to some questions remain unknown or in need of additional clarification.

The definition of who may obtain a physician certification for the medical use of marijuana remains nearly the same in F.S. [section]381.986 as it was in Amendment 2, because the legislature failed to define or provide greater specificity on the phrase

"other debilitating conditions" used in Amendment 2. The qualifying medical conditions under the new law include cancer, epilepsy, glaucoma, HIV, AIDS, PTSD, ALS, Crohn's disease, Parkinson's disease, MS, "medical conditions of the same kind of class as or comparable to those enumerated," terminal conditions diagnosed not by the prescribing physician but a separate physician, and chronic nonmalignant pain. (3) While the Florida Department of Health has begun issuing notices of proposed regulations on medical marijuana, they determined that "qualifying debilitating medical condition" would have the same definition as "qualifying medical condition" in [section]381.986(2). (4) Modifying the previously enacted "Charlotte's Web" law, the legislature removed the 90-day waiting period and, surprisingly, failed to limit the maximum concentration of THC that medical marijuana may contain. (5) It is, therefore, reasonable to assume that some versions of medical marijuana products will be extremely potent, containing high percentages of THC.

The new law explicitly preempts county or municipal ordinances, with the exception of permitting ordinances banning medical marijuana dispensaries from being located within the county or municipality. (6) Additionally, local ordinances may limit the location of the dispensaries, but the limitation may not preempt state limitations and they may not go further than limits on the location of local pharmacies. (7) Thus, counties and local municipalities are essentially left with two options: either allow or ban dispensaries in their communities.

One of the most interesting parts of the new law is its explicit prohibition on the administration of medical marijuana by smoking. (8) However, the legislature allowed for possession of the medical marijuana flower for vaping. (9)

Does the New Statute Change the Law of the Workplace?

With the passage of [section] 381.986, the legislature directly addressed several employment issues, thus, providing significant guidance for employers. Although failing to define employer, the statute expressly denies the creation of "a cause of action against an employer for wrongful discharge or discrimination." (10) The legislature went a step further by expressly stating that employers are not required to accommodate an employee's use of medical marijuana at work. (11) Additionally, the statute expressly prohibits medical marijuana users from using medical marijuana at their place of employment without their employer's permission. (12) For employers with drug-free policies and programs, [section]...

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