On November 18, 2019, Florida Senator Lori Berman (D) introduced Senate Bill 962, which proposes to provide job applicants and employees who use medical marijuana various protections in employment. If enacted, Florida would join the growing number of states to pass laws with similar protections, including most recently in Illinois.
Specifically, the bill proposes to make it unlawful for an employer to take adverse action against an applicant or employee who is a qualified patient using medical marijuana consistent with state law, unless the position held or sought is one involving “safety-sensitive job duties.” The bill defines “safety-sensitive” to mean “tasks or duties of a job which the employer reasonably believes could affect the safety and health of the employee performing the tasks or duties or other persons,” including, but not limited to:
- The handling, packaging, processing, storage, disposal, or transport of hazardous materials.
- The operation of a motor vehicle, equipment, machinery, or power tools.
- The repair, maintenance, or monitoring of any equipment, machinery, or manufacturing process, the malfunction or disruption of which could result in injury or property damage.
- The performance of firefighting duties.
- The operation, maintenance, or oversight of critical services and infrastructure, including, but not limited to, electric, gas, and water utilities or power generation or distribution.
- The extraction, compression, processing, manufacturing, handling, packaging, storage, disposal, treatment, or transport of potentially volatile, flammable, combustible materials, elements, chemicals, or any other highly regulated component.
- The dispensing of pharmaceuticals.
- The carrying of a firearm.
- The direct care of a patient or child.
The bill also proposes to allow an employer to take appropriate adverse action against any employee if the employer establishes by a preponderance of the evidence that the lawful use of medical marijuana is impairing the employee’s ability to perform his or her job responsibilities. The bill provides that an employer may consider an employee to be impaired if the employee displays specific articulable symptoms while working which decrease or lessen the performance of his or her duties or tasks.
If an employer has a drug testing policy and an applicant or employee tests positive for marijuana or its metabolites, the bill would require the employer to, within five business days after receipt of the positive test result, provide the applicant or employee written notice of his or her right to provide an explanation for the positive test result.
The applicant or employee then would have five business days to submit information to the employer explaining or contesting the positive test result or to request a confirmation test at the applicant or employee’s expense. The applicant or employee may submit a physician certification for medical marijuana or a medical marijuana use registry identification card as part of his or her explanation for the positive test result. However, if the applicant or employee fails to provide a satisfactory explanation for the positive test result, the bill states that the employer must first verify the positive test result with a confirmation test, at the employer’s expense, before it can take adverse action against the applicant or employee.
The bill explicitly states that the law, if enacted as written, will not, among other things:
- Prohibit an employer from taking adverse action against an employee for the possession or use of a controlled substance, as defined under state law, during normal business hours;
- Require an employer to commit any act that would cause the employer to violate federal law or that would result in the loss of a federal contract or federal funding; or
- Require a government medical assistance private health insurer to reimburse a person associated with the use of medical marijuana.
The bill also states that the law would not require an employer to modify the job conditions of a person who engages in the use of marijuana based on the reasonable business purposes of the employer. However, even though the state’s medical marijuana law in section 381.986(15) states that employers are not required to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana, this bill would require an employer to attempt to make reasonable accommodations for the medical needs of an employee who engages in the use of medical marijuana if the employee holds a valid medical marijuana use identification card, unless the employer can demonstrate that the accommodation would pose a threat of harm or danger to persons or property, impose an undue hardship on the employer, or prohibit an employee from fulfilling his or her job responsibilities.
If enacted, aggrieved applicants and employees would have a private right of action and, if successful, could recover the full panoply of damages, including reinstatement to the same position held before the adverse decision, attorney’s fees and any other compensatory damages allowable by law.
Employers with operations in Florida should closely monitor the bill’s movement through the state legislature. If enacted, the law will join the growing list of states and localities enacting specific laws that provide clear employment protections to medical marijuana users.