Medical Marijuana in the Workplace

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More than 70 percent of Florida voters approved Amendment 2— the Florida Medical Marijuana Legalization Initiative—in the November 2016 general election. Taking effect in January 2017, it expanded a medical marijuana law already in place in Florida that allowed use by patients who were terminally ill.

The new measure permits medical marijuana use by patients with debilitating conditions such as cancer, glaucoma, epilepsy, PTSD and ALS. How should employers handle this broader access to a drug whose use until recently might have justified termination? We asked Suzanne Boy, an employment law attorney at Henderson Franklin in Fort Myers, for some guidance on the key issues employers need to know related to medical marijuana and the workplace.

“Employers really have the discretion to decide whether they want to allow it or not,” says Boy. “They get to say, ‘We have a drug-free workplace policy and it includes marijuana.’” And, according to Boy, they can include medical marijuana use under that umbrella.

The majority of
 employers Boy speaks 
with are choosing to 
say “no” at this point, even when an employee has a medical marijuana card. “They really can enforce their drug-free workplace policy irrespective of the fact that medical marijuana is legal in Florida,” she says. “They can still have a zero-tolerance policy.”

Seeking legal advice is a smart idea.

This is especially important when it’s the first time an employer is dealing with this issue. “You need to speak with an employment lawyer who can advise you of all the risks for allowing it and for prohibiting it,” says Boy.

For example, she says employers with drug-free workplaces often get discounts on workers’ compensation insurance that could go away if medical marijuana use is allowed. A lawyer can also help assess any potential issues with the Americans with Disabilities Act (ADA) that could arise from prohibiting medical marijuana use or terminating an employee found in violation of a workplace’s drug policy.

Boy says that so far the courts have mostly sided with employers when it comes to enforcing workplace drug policies and medical marijuana use. But a thorough legal assessment of a particular employer’s situation is the best way to limit problems down the road.

If your company doesn’t have an official drug and alcohol policy, now is the time to put one in place.

Having a drug-free workplace policy on the books gives employers the right not to hire or to terminate an employee who tests positive, even if they have a medical marijuana card. If an employer chooses to allow medical marijuana use, an official policy provides the framework for that.
“If you don’t already have a policy and then you terminate someone for testing positive, that’s when you could get into problems with the ADA and with other issues,” says Boy. “So what employers should be doing right now, if they haven’t already, is figuring out what they want their position to be.”

Choosing to allow medical marijuana use among your employees comes with safety considerations.

Even if employees with medical marijuana cards aren’t allowed to use it in the workplace or to be under the influence at work, the position an employee holds needs to be taken into account. “You might look at it differently for someone who is a receptionist than someone operating a forklift,” says Boy. “Safety issues are something that you would need to take into consideration.”

Employees’ privacy also needs to be respected.

“If an employee is proactively disclosing that they are getting a medical marijuana card, and an employer is not enforcing a drug-free workplace, I would treat it the same way as any other prescription,” says Boy. “You don’t have a need-to-know basis unless it’s impacting an employee’s job performance.”

Otherwise, Boy says an employer should never ask an employee if they have a medical marijuana card. An employer has more leeway to ask questions if they have an official workplace drug policy and an employee tests positive. “If they test positive, and an employer is considering allowing them to not be terminated, then you could find out if they have an authorization card,” says Boy. 

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