Executive Summary: If voters approve the ballot initiative "Use of Marijuana for Certain Medical Conditions" ("Amendment 2") this November, Florida will become the 24th state plus Washington D.C. to legalize medical marijuana. Amendment 2 would amend the Florida Constitution to allow the medical use of marijuana for individuals with certain debilitating conditions as determined by a physician. The proposed amendment gives little insight into its potential effect on employer policies, and, if approved, the implementing regulations will not be available until July of 2015. However, with more and more states legalizing some form of medical marijuana, employers should be proactive in assessing their workplace policies and drug testing programs for compliance, especially when operating in more than one jurisdiction.
Discrimination and Adverse Actions Based on Status and Use
Almost all states with medical marijuana laws prohibit employers from discriminating against applicants or employees in any term or condition of employment, or otherwise disciplining a person, solely on the basis of the person's status as a registered user of medical marijuana, unless the employer would lose funding, contracts or licensing under federal law. Regardless of state law, however, the Department of Transportation (DOT) regulations prohibit any use of marijuana by "safety-sensitive" employees such as pilots, school bus drivers, truck drivers, train engineers, aircraft maintenance personnel, ship captains, etc.
Most states also do not require an employer to accommodate a qualified medical marijuana user by allowing ingestion or possession of marijuana in the workplace. Moreover, no state prohibits adverse action against an employee who is determined to be under the influence of or impaired by marijuana at work. The question becomes, what constitutes "impairment" at work? Most states allow employers to maintain nondiscriminatory, drug-free workplace policies that allow discipline, termination or refusal to hire based solely on a positive drug test. This is mainly because marijuana remains illegal under federal law. In these states, "impairment" can be inferred from the positive drug test.
However, some states, including Delaware, Arizona, and Maine, prohibit adverse action taken solely because of a positive drug test confirming the presence of marijuana and require additional evidence of "impairment" before taking adverse action. Because THC (the active chemical in marijuana) metabolites can be detected in urine tests for up to several weeks after use, the mere presence of these metabolites does not indicate impairment. Accordingly, these states require an employer to prove impairment by other means.
Proving use or impairment can be a formidable task for an employer, and the text of most states' laws generally offers little guidance. Illinois law provides some guidance, stating that an employee may be considered impaired when the employee "manifests specific, articulable symptoms, defined as speech, dexterity, agility, demeanor, etc…" Arizona law broadly defines the term "impairment" to include "symptoms that may decrease or lessen the employee's performance, including symptoms related to speech, walking, standing, dexterity, agility, coordination, actions, movement, demeanor, appearance, clothing, odor, irrational or unusual behavior, negligence, carelessness in operating equipment, disregard for safety, involvement in an accident resulting in serious damage, any injury to the employee, or other symptoms causing a ‘reasonable suspicion' of drug use." The employer's good faith belief of possession, use or impairment while working is a defense to claims brought by employees against employers in these states.
Medical Marijuana Use and the ADA or State Discrimination Laws
It is important to note that these state medical marijuana laws do not change the fact that the use and possession of marijuana continues to be unlawful under federal law. This fact has been critical in several court cases challenging adverse actions based on marijuana use considered legal under state law. For instance, the Americans with Disability Act ("ADA") does not protect individuals who claim discrimination because of medical marijuana use. The ADA excludes from coverage disabilities based on "illegal drug use." The determination of "illegality" under the ADA is based on federal, not state, law. Additionally, several states, such as California and Colorado, have laws protecting employees from adverse action taken as a result of participation in "lawful off-duty activities." So far, the courts have unanimously held that the "lawful off-duty activity" must be lawful under both federal and state law and that medical marijuana use is, therefore, not protected activity.
Although the use of medical marijuana is not protected under the ADA, the underlying condition for which the employee is using medical marijuana may be considered a disability requiring accommodation under the ADA or state discrimination laws. Thus, once the employer becomes aware of an employee's status as a registered patient, the employer may have an obligation to discuss reasonable accommodations for the underlying disability prior to taking adverse action. Additionally, state discrimination laws that do not track the language of the ADA regarding illegal drug use may require employers to consider reasonable accommodations for registered medical marijuana users. This is especially true in states like New York where medical marijuana patients are automatically considered disabled for purposes of the state's anti-discrimination laws.
Employers' Bottom Line:
On its face, it appears that Amendment 2, if approved, may result in employee friendly regulations, as it states only that "[n]othing in this section shall require any accommodation of any on-site medical use of marijuana in any place of … employment..." We will not know how the state will interpret the Amendment until the regulations are published, but if the Amendment language is any indication, Florida employers may be looking to Delaware and Arizona case law for guidance.
If Amendment 2 is approved, employers should be prepared to revise their drug testing policies if necessary to ensure compliance with the new law. Employers with operations in multiple jurisdictions should ensure that their policies comply with Florida's law as well as the laws of the other states in which they operate. In some states, zero-tolerance policies must be modified with respect to marijuana testing. In those states where positive drug tests are not considered conclusive of impairment, employers may need to revisit their drug testing procedures, including the communication by the Medical Review Officer ("MRO") of positive drug tests for employees with valid prescriptions. Of course, if drug testing is the subject of collective bargaining, employers will be required to comply with notification and bargaining obligations before changing their policies.
Employers also should keep employees updated and educated on their drug testing policies and should specifically discuss any effect the legalization of marijuana has on those policies and any consequences of travel among offices in states where legalization has not occurred.
Regardless of whether voters approve Amendment 2, it is important for employers to ensure that supervisors, managers, and directors have sufficient education and training to enable them to detect signs of employee impairment and respond appropriately, including accurately documenting any investigation. Accurate documentation can be essential in defending an adverse employment action if the employee subsequently challenges the decision.
If you have any questions regarding Amendment 2 or this Alert, please contact the author, Shannon Lee Kelly, firstname.lastname@example.org, who is a partner in our Tampa office. You may also contact the FordHarrison attorney with whom you usually work.
The employer may need to prove that the employee was using marijuana at work or was impaired. The company should have a clear process in place for addressing these situations. Every step must be carefully documented to provide evidence in case employees decide to challenge the termination.
 Additionally, there are 11 other states, including Florida, that allow the use of low THC, high cannabidiol ("CBD") products for limited medical situations or as a legal defense.
 This language refers to federally required drug testing (e.g. DOT) and employers who are required to comply with the Drug-Free Workplace Act of 1988. However, not all federal programs and/or contracts require termination of current drug users, and each program and/or contract must be viewed individually to determine federal obligations.
 Amendment 2 specifically states that it does not "purport to give immunity under federal law."