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Florida Preserves Employer Protections in Medical Marijuana Bill

Voters in the November 8, 2016, general election in the state of Florida approved the Florida Medical Marijuana Legalization Initiative. The initiative required a supermajority vote to pass, with at least 60 percent of voters voting in support of a state constitutional amendment. The provision became part of the Florida Constitution at Article X, Section 29. The constitutional amendment (Article X, Section 29(e)) expressly provides that “[n]othing in this section shall limit the legislature from enacting laws consistent with this section.”

On June 9, 2017, a bill was sent to Governor Rick Scott for his signature (SB 8-A). The Florida House of Representatives passed the bill 103–9 before the Senate voted 29–6 in favor of the bill. Scott said he “absolutely” intends to sign the medical marijuana bill passed by the state legislature. The bill will be effective upon Scott’s signing the bill, and will take effect upon becoming a law. The amendment states that laws must be in place by July 3, 2017, and enacted by October of 2017. Scott should be able to sign the bill ahead of the first deadline.

While many aspects of the bill have been reported on, the most important section of the bill for Florida employers has received scant attention. Section 381.986 of the Florida Statutes has been amended to provide:

This section does not limit the ability of an employer to establish, continue, or enforce a    drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination. Marijuana, as defined in this section, is not reimbursable under chapter 440.

Court challenges are likely, most certainly on the aspect of the legislation that precludes actual smoking of marijuana. It is unclear what the result of a court challenge would be on the section that excludes smoking. The constitutional amendment provides that “[n]othing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place.”

In any event, the legislation gives Florida employers some degree of protection if they do not want intoxicated employees on their worksites. This is also consistent with the federal Department of Transportation rule that medical review officers will not verify a drug test as negative based upon information that a physician recommended that the employee use medical marijuana. Under those rules, “[i]t remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.” 

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume VII, Number 164


About this Author

Edmund McKEnna, Employment Litigator
Office Managing Shareholder

Ed McKenna’s practice primarily involves litigation, including Federal Rule 23 class actions, and advising employers how to avoid litigation. He has represented private/public employers in a variety of employment lawsuits -- including Title VII, ADEA, ADA, FMLA, FLSA, wrongful discharge, whistle blowing, and defamation -- before agencies and in state and federal courts. He has been involved in numerous employment class and collective action cases, including significant decisions involving the denial of class certification. He is also experienced with union issues, including unfair labor...