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Are Employers Required to Provide Accommodations Under Florida's Medical Marijuana Act?Bruce E. Loren | Feb 22 2019

Employers May Maintain the Status Quo…For Now

Now that Florida has allowed medical marijuana to be legally prescribed, businesses are concerned how these laws will affect their ability to enforce a "drug free workplace." The ADA requires employers to provide reasonable accommodations to qualified employees with a disability, unless doing so would pose an undue hardship. Typically, courts have found medications and their side effects must be accommodated.

However, the ADA does not yet require "drug-free workplace" policies to accommodate an employee using medical marijuana, even if the employee qualifies as disabled and even if the marijuana is legally prescribed. Under the ADA, illegal drugs are defined by the federal Controlled Substances Act (CSA). The CSA currently classifies marijuana as illegal with no "currently acceptable medical use." While there are other potential federal issues surrounding medical marijuana in the workplace, the CSA definition eliminates possible claims under the ADA. This means that employers may still drug test for marijuana and prohibit employees from consuming marijuana either at work or at home. Drug-free workplace policies, like all employment policies, must be applied consistently and uniformly to all employees to avoid claims of discrimination.

Nevertheless, employers should still be wary when an issue with medical marijuana arises because, once you become aware of an employee’s underlying medical condition, the employer may then become obligated to engage in the interactive process and provide some other type of reasonable accommodation or leave.

Florida’s medical marijuana law, which provides legal access to marijuana to patients with qualifying conditions, still allows an employer to create, continue or enforce a drug free policy. "Drug free" includes an employee’s medical marijuana use. The statute goes so far as to specifically deny a claim by employees who are terminated for their marijuana use, despite having a qualifying condition and complying with the law.

Moving Forward

For now, not much changes for Florida employers as a result of the legalization of medical marijuana. Employers still have the right to perform drug testing and to terminate for marijuana use, either legal or illegal. There is no legal duty under this new law to allow employees to consume medical marijuana at the workplace. However, the law is quickly evolving, and employers should start planning for a future when marijuana usage is legal on the federal level, and becomes an approved treatment under the ADA, or when the Florida Legislature amends the state statute.

Employers who choose to continue to maintain zero tolerance drug policies should communicate to their employees, in writing, that any marijuana use—including off-duty legal use—can subject them to adverse action including termination. Companies can and should update their employment policies to reflect the rising popularity and use of legal medical marijuana. We can help you to develop an employee manual and workplace policies to help keep your hiring process competitive and protect you from future claims.

Bruce Loren, Esq. of the Loren & Kean Law Firm is based in Palm Beach Gardens and Fort Lauderdale, Florida, and devote his practice to construction law and employment law. Mr. Loren has achieved the title of "Certified in Construction Law" by the Florida Bar, exemplifying the Bar’s recognition of this expertise. The firm’s construction clients include owners/developers, general contractors, specialty contractors in every trade, suppliers and professional architects and engineers. Mr. Loren can be reached at bloren@lorenkeanlaw.com or by phone at 561-615-5701.