Lawful use of medical marijuana could raise issues for employees

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Editor’s note: This commentary is provided by the Medical Marijuana Education and Research Initiative (MMERI) of Florida A&M University.

Kamilah Perry

Last November, the Marion County School Board fired a high school administrator after he refused to stop using medical marijuana to treat chronic pain related to a combat injury he sustained while serving in the military.

Although he was prescribed cannabis for a qualifying medical condition under Florida law, the school district’s drug-free workplace policy trumped his health care decision. Furthermore, federal law treats medical marijuana as an illicit drug and bans its use on federally funded properties. Public schools receive federal funding.

This conflict between employer and medical marijuana patient served as a springboard into a larger conversation MMERI had with a Florida labor law professional regarding marijuana-related issues in the workplace. Kamilah Perry is a partner in the Perry Law Group, with offices in Orlando and Tampa, and she also serves as executive director and general counsel for the Office of the State Attorney, Ninth Judicial Circuit, which includes Orange and Osceola counties. She has been practicing law since 2002.

LACK OF PROTECTION

Perry said the former high school administrator’s firing did not come as a surprise, given that medical marijuana users are not protected under any federal or state anti-discrimination laws. Any employer in Florida, private or public, is within its rights to terminate an employee who tests positive for using marijuana, even when it is legally prescribed.

That lack of protection also means, Perry said, that “there’s no remedy at all for a medical marijuana user” to legally challenge an employer’s termination decision. “In fact, [Florida’s medical marijuana] statute [Section 381.986] specifically says that nothing in this statute that makes medical marijuana legal impacts the employer and forces the employer not to have a drug-free workplace policy. So, the Florida statute is very clear that medical marijuana users don’t have any additional rights in a workplace as a result of this statute.”

But all that could change if the Florida Legislature were to pass — and the governor signed — a bill that would extend workplace protections to medical marijuana patients. Two recently filed companion bills,

S.B. 962 and H.B. 335, offer some hope but only to public employees and job applicants seeking employment in the public sector.

Still, it would stand to reason that a broader worker protection law is needed in a state that says it is legal for residents to usemedical marijuana and, under law, must inform employers if they are being treated with it.

“Currently it’s a Catch-22 if you’re using medical marijuana,” she said. “The statute says you have to tell your employer but doing so could cost you your job. That puts people in a very difficult position. Clearly, employees need some protections if they’re legally using medical marijuana.”

‘ATTITUDES ARE DEFINITELY CHANGING’

But Perry said she believes private employers in Florida are trying to accommodate employees being treated with medical marijuana if they do not pose a risk to coworkers or themselves.

“A lot of employers. . . understand that medical marijuana is not the same as getting high on regular, on street level, marijuana; that it is a pain reliever. So, I think the attitudes are definitely changing,” she said.

Employers also are taking a more relaxed view of recreational marijuana use among employees, said added.

“It really depends on if you are under the influence while in the workplace. So, if they do not catch you under the influence in the workplace via direct testing, typically an employer is not . . . going to fire you for activities outside of the workplace.”

Returning to the topic of the fired administrator, Perry said his situation is a fitting example of the need for legislation clarifying medical marijuana patients’ workplace protections, including in public schools. “It’s the next logical step. I mean, there’s no way that employers can sustain this with so many people needing medical marijuana,” she said.

“We won’t have a workforce.”

Be sure to watch MMERI’s Conversations on Cannabis Virtual Forum on Facebook Live, Youtube.com and Instagram TV. For more information on medical marijuana and to sign up for the MMERI newsletter, go tohttp://mmeri.famu.edu/

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