A Positive Drug Test for Medical Marijuana: A Roadmap for Getting Your Fire Department to Accommodate Off-Duty Use of the Medicine

In Giambrone v. Hillsborough County, a Florida state court found Hillsborough County was required to accommodate an employee’s off-duty use of medical marijuana. The court found the county violated the Florida Civil Rights Act’s (FCRA) prohibition against disability discrimination by failing to provide a reasonable accommodation for a firefighter paramedic’s lawful use of medical cannabis.

The firefighter, Angelo Giambrone, filed suit after being placed on unpaid administrative leave following a positive random drug test unrelated to workplace injury or accident. In addition to no evidence of impairment, he successfully argued the Florida Drug-Free Workplace Act does not expressly prohibit the use of off-site medical cannabis. So how did Giambrone do it? Here are the takeaways.

1. After testing positive for marijuana, he presented his medical marijuana prescription card to the Employer and medical review officer.

2. Through his union, he requested a reasonable accommodation – as permitted by the laws against disability discrimination – that the Employer treat the positive test as a negative for his use of medical marijuana outside of work hours.

3. In court, he showed that he had consulted with a licensed medical doctor authorized to certify and issue prescriptions permitting patients to use medical marijuana, paid the required fee, and was issued a medical marijuana card from the Florida Department of Health.

4. He established that he was a disabled individual under the FCRA; he showed that he suffers from anxiety, PTSD and insomnia which substantially limit one or more of his major life activities when he is not properly medicated. He had tried multiple different prescription medications prior to his primary care physician recommending him to a medical marijuana specialist physician because of the side-effects of the other prescription medications.5. He established he only utilized marijuana on gaps of time where he has off from work and did not use medical marijuana when he was on duty at work.

6. There was no marijuana use on work premises or during work hours.

7. There was no evidence of impairment while working.

8. There was no complaint or suspicion of impairment.

9. The parties’ collective bargaining agreement (CBA) and the Employer’s Drug Free Workplace Policy allowed employees to report the use of prescriptions authorized under federal or state law upon testing positive on a drug test.

10. The FCRA prohibits discrimination based on handicap or disability BUT requires that a person first must file a complaint (called a “charge”) for disability discrimination/retaliation with the Florida Commission of Human Relations (FCHR) before filing a lawsuit. The complaint must be filed with the FCHR within 365 days of the alleged violation. The FCHR must be allowed to investigate the matter for 180 days before a person can go to court on the complaint. This is called, “exhaustion of administrative remedies.”

11. Once completing the FCHR process, Giambrone filed a lawsuit in state circuit court alleging violation of the FCRA, breach of the Union contract and breach of the County’s own policy.

12. The FCHR and circuit court process is involved and has many other important aspects and requirements that we cannot cover in this brief informational bulletin. Indeed, this bulletin is not legal advice, and you should not consider it legal advice for any particular situation or case.