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Florida medical marijuana cards: Free pass on workplace drug tests?

Sun September 1, 2019 Publications

Florida has the fastest-growing medical marijuana program in the nation. Three years after voters passed Amendment 2 legalizing medical marijuana and despite governmental efforts to limit that right, a new dispensary or two open every week somewhere in the state. Getting a Florida medical marijuana card is relatively fast and simple. Over 337,000 Florida residents are qualified patients, with over 251,000 holding cards, according to the Office of Medical Marijuana Use’s most recent update. All bets are on an exponential increase in the coming months and years.
Meanwhile, Florida employers who implement a drug-free workplace program are eligible to receive up to a 5% workers compensation premium credit. If an employee with a medical marijuana prescription tests positive pursuant to a drug-free workplace program, what should the employer do? On the one hand, the employee has a constitutional and statutory right to receive medical marijuana treatment. On the other, an employer who knowingly allows the use of medical marijuana may no longer qualify as a drug-free workplace if the matter is brought to the carrier’s attention; loss of premium credit can be a significant blow for large employers.

The Legislature has attempted to answer this question in § 381.986, “Medical use of marijuana,” the legislative effort to implement Amendment 2. § 381.986(15) provides the law does not limit an employer’s ability to benefit from a drug-free workplace. In other words, the employer can enforce the drug-free workplace program to hold accountable and discharge employees with marijuana prescriptions who use or test positive. The same section provides the law does not require an employer to accommodate the medical use of marijuana in any workplace or otherwise create a cause of action against an employer for wrongful discharge or discrimination.

It is true, for now, that an employer, at least a private employer, can terminate an employee with a medical prescription who uses or tests positive. There is no repercussion under state or federal law. However, given the continuing rise of medical marijuana in Florida, greater acceptance of medical marijuana in the workplace seems like a logical next step.

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