Florida’s Workplaces Medical Marijuana's Impact in Getting ......Medical Marijuana and the...

Getting into the Weeds:  Medical Marijuana's Impact in

Florida’s WorkplacesRachel D. Gebaide

407-418-6258 * rachel.gebaide@lowndes-law.com

Florida Human Resources People and Strategy * September 26, 2019

Medical Marijuana: A Brief History of Legalization in Florida

Controlled Substances Act: Marijuana is illegal under federal law

• Signed by Richard Nixon in 1970• The legislation created five schedules (classifications), with varying qualifications

for a substance to be included in each3

What are Schedule I Drugs?

• Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse.

• Some examples of Schedule I drugs are: heroin, LSD, ecstasy, peyote, ... … and marijuana.

• The Drug Enforcement Administration (DEA) and the Food and Drug Administration (FDA) determine which substances are added to or removed from the various schedules, although the legislation created the initial listing.

• The removal of marijuana from Schedule I has been proposed and denied repeatedly since 1972.

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Federal vs. State Law:The Cole Memorandum (August 2013)

Eight Enforcement Priorities

• Prevent distribution of marijuana to minors (NO KIDS!)• Prevent marijuana revenue from funding criminal enterprises, gangs or cartels (NO GANGS!)• Prevent marijuana from moving out of states where it is legal (NO DIVERSION!)• Prevent use of state-legal marijuana sales as a cover for trafficking or other illegal activity (NO

COVERS!) • Prevent violence and use of firearms in growing or distributing marijuana (NO GUNS!)• Prevent drugged driving or exacerbation of other adverse public health consequences

associated with marijuana use (NO DUIs!)• Prevent growing marijuana on public lands due to environmental dangers posed by marijuana

production (NO CONTAMINATION!)• Prevent marijuana possession or use on federal property (NO PRISONERS!)

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Federal vs. State Law:The Cole Memorandum (August 2013)

Effectively prosecutorial immunity?

• No!

• “This memorandum does not alter in any way the Department’s authority to enforce federal law, including federal laws relating to marijuana, regardless of state law.”

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The Rohrabacher Amendment (2017) [Failed]

A bill to amend the Controlled Substances Act:

Short Title: This Act may be cited as the “Respect State Marijuana Laws Act of 2017”

Rule Regarding Application to Marihuana:

“Notwithstanding any other provision of law, the provisions of this subchapter related to marihuana shall not apply to any person acting in compliance with State laws relating to the production, possession, distribution, dispensation, administration, or delivery of marihuana.”

Result: Unsuccessful

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The Sessions Memorandum (2018)

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Prosecute as you please!

State of Marijuana Laws in the US

• California was the first state to approve medical marijuana in 1996

• Since then:–33 states legalized medical marijuana –10 states plus Washington, D.C. have legalized

recreational marijuana

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State of Marijuana Laws in the US

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Florida: State of Medical Marijuana Laws

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q 2014: Compassionate Medical Cannabis Actq Low-THC medical marijuana for patients with cancer or chronic seizures/muscle spasms

q Must be seen for 90 days by a licensed physician

q Vertically integrated system for licensed dispensing organization

q Established the Compassionate Use Registry

q 2015: Right to Try Actq Medical marijuana (low and high THC) for terminally ill patients

q Two physicians required

q Patients allowed access to 45 day supply

Florida: State of Medical Marijuana Laws

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2016: Amendment 2 (Florida Constitution)• Makes use of medical marijuana legal

• Expands definition of qualifying medical conditions

• Establishes Medical Marijuana Treatment Centers (MMTCs)

Implementation of Amendment 2

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Section 381.986, Florida Statutes: Medical Use of Marijuana

• Regulating Medical Marijuana from A to Z

• Amended March 18, 2019 to permit smoking (SB 182)

• Amended July 1, 2019 to prohibit “the smoking of marijuana in an enclosed indoor workplace as defined in s. 386.203(5) [Florida Clean Indoor Air Act].”

Implementation of Amendment 2

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Qualifying Conditions

• MMTCs can dispense up to a 70-day supply to a patient (or 35-day supply limits of marijuana in a form for smoking) with the following qualifying medical conditions:

• Cancer, epilepsy, glaucoma, HIV, AIDS, PTSD, ALS, Crohn’s, Parkinson’s & MS

• A terminal condition diagnosed by a physician other than the qualified physician issuing the physician certification

• Chronic nonmalignant pain

• Medical conditions of the same kind or class as or comparable to those enumerated in paragraphs

Implementation of Amendment 2

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Delivery Devices and Routes of Administration:

• Vaping allowed• Edibles allowed• Smoking allowed (effective March 18, 2019)

Medical Marijuana and the Workplace

Medical Marijuana and the Workplace

Arizona, Delaware, Minnesota, and Nevada:• Employers may not take an adverse employment action based on an individual’s status as a

medical marijuana cardholder unless failure to take adverse action would violate federal laws or regulations or cause the employer to lose a monetary or license-related benefit under federal law or regulations.

Connecticut, Illinois, Maine, and Rhode Island:• Similar laws prohibiting discrimination on the basis of medical marijuana status.

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Medical Marijuana and the Workplace

Barbuto v. Advantage Sales & Marketing, LLC, 78 N.E.3d 37 (Mass. 2017): • Employee sued for alleged employment discrimination and unlawful termination due to

employee’s use of medical marijuana. Massachusetts Supreme Judicial Court held that the employer should have engaged in the interactive process to determine whether an employee’s use of marijuana potentially could have been accommodated.

Callaghan v. Darlington Fabrics Co., 2017 WL 2321181 (R.I. Super. May 23, 2017): • Rhode Island court held that the state’s medical marijuana statute is violated when an

employer refuses to hire an applicant because of his or her medical marijuana use, explicitly rejecting an employer’s argument that the applicant was not a qualified individual because her use of marijuana was illegal under federal law.

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Implementation of Amendment 2:

Section 381.986, Fla. Stat. - Medical Use of Marijuana 

(9)(f )  This subsection does not exempt a person from prosecution for a criminal offense related to impairment or intoxication resulting from the medical use of low-THC cannabis or medical cannabis or relieve a person from any requirement under law to submit to a breath, blood, urine, or other test to detect the presence of a controlled substance . (emphasis added)

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Medical Marijuana and the Workplace

Section 381.986, Fla. Stat. - Medical Use of Marijuana (emphasis added)

(15) Applicability.—

(a) This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy.

(b) This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana.

(c) This section does not create a cause of action against an employer for wrongful discharge or discrimination.

(d) This section does not impair the ability of any party to restrict or limit smoking or vaping marijuana on his or her private property. (new)

(e) This section does not prohibit the medical use of marijuana or a caregiver assisting with the medical use of marijuana in a nursing home facility licensed under part II of chapter 400, a hospice facility licensed under part IV of chapter 400, or an assisted living facility licensed under part I of chapter 429, if the medical use of marijuana is not prohibited in the facility's policies. (new)

(f) Marijuana, as defined in this section, is not reimbursable under chapter 440.

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Recent Changes in Federal Law

FDA Approval

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On June 25, 2018 the U.S. Food and Drug Administration approved Epidiolex (cannabidiol) [CBD] oral solution for the treatment of seizures associated with two rare and severe forms of epilepsy in patients two years of age and older. This is the first FDA-approved drug that contains a purified drug substance derived from marijuana.

Hemp Farming Act of 2018• Signed into law on December 20, 2018• Hemp is currently defined as a

cannabis sativa plant, and any part or derivative thereof, which contains no more than 0.3% THC concentration on a dry weight basis.

• The Hemp Farming Act removes hemp from the Controlled Substances Act.

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Is Federal Legalization of Marijuana Next?

• Marijuana and hemp are actually very different.• Senate Majority Leader Mitch McConnell, who helped to get the 2018 Farm Bill

passed, said hemp “is a different plant” that “has an illicit cousin which I choose not to embrace.”

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Medical Marijuana and the Workplace

Multiple laws are in play:

• Florida: Medical Use of Marijuana• Americans with Disabilities Act, as amended• Family and Medical Leave Act • Florida Civil Rights Act• Florida Workers’ Compensation Law• Level II Screening and other required background checks• Local Ordinances• And More!

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Medical Marijuana and the WorkplaceSection 381.986 v. Other Laws

Americans with Disabilities Act - ADAAA

§ Cannabis remains illegal under federal law.

§ No duty to reasonably accommodate an employee’s lawful use of medical marijuana.

§ ADA: “a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs.” 42 U.S.C. § 12114(a)(emphasis added)

§ ADA: “illegal use of drugs” is the use of drugs that are unlawful under the Controlled Substances Act, excluding the use of drugs taken under supervision by a licensed healthcare professional or other uses authorized by the Controlled Substances Act or other provisions of federal law. 42 U.S.C. § 12210(d)

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Medical Marijuana and the WorkplaceSection 381.986 v. Other Laws

Florida Civil Rights Act§ State law legalized medical marijuana § Duty to provide reasonable accommodations?§ Discrimination because of an employee’s lawful use of medical marijuana?

Ø This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana.

Ø This section does not create a cause of action against an employer for wrongful discharge or discrimination.

Ø This section does not impair the ability of any party to restrict or limit smoking or vaping marijuana on his or her private property.

Ø Smoking marijuana indoors in the workplace is not permitted.

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Medical Marijuana and the WorkplaceSection 381.986 v. Other Laws

Local Human Rights Ordinances

• Can local governments enact more or less restrictive ordinances relating to medical marijuana in the employment context?

• Section 381.986(11), Fla. Stat. discusses preemption

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Medical Marijuana and the WorkplaceSection 381.986 v. Other Laws

Background Checks/Drug Screening

• Legally Mandated• Safety Sensitive• Drug Free Workplace Program (Statutory)• Drug Free Workplace Program (Non-Statutory)

Medical Marijuana Law:

• This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy.

• This subsection does not exempt a person from prosecution for a criminal offense related to impairment or intoxication resulting from the medical use of low-THC cannabis or medical cannabis or relieve a person from any requirement under law to submit to a breath, blood, urine, or other test to detect the presence of a controlled substance.

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Medical Marijuana and the WorkplaceSection 381.986 v. Other Laws

Florida Workers’ Compensation Law (Chapter 440)

Could relaxed employment policies jeopardize employer protection under the workers’ compensation law?

Medical Marijuana Law:• This section does not limit the ability of an employer to establish, continue, or enforce a drug-

free workplace program or policy. • Marijuana, as defined in this section, is not reimbursable under chapter 440.

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Medical Marijuana and the WorkplaceSection 381.986 v. Other Laws

Family and Medical Leave Act (Federal Law)

Marijuana is illegal under federal law, but employees may still have FMLA rights relating to medical marijuana.

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Medical Marijuana and the WorkplaceBest Practices

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• Decide company policy regarding medical marijuana• Review employee handbook and update policies, if necessary• Consider each employee scenario on a case by case basis• Understand that multiple laws are in play:

• Florida: Medical Use of Marijuana• Americans with Disabilities Act, as amended• Family and Medical Leave Act • Florida Civil Rights Act• Florida Workers’ Compensation Law• Level II Screening and other required background checks• Local Ordinances

• Consult with HR • Consult with legal counsel, as necessary

Medical Marijuana and the WorkplaceBest Practices

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… and, as always, document, document, document!

Medical Marijuana and the Workplace

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Question: Can an employer refuse to hire an applicant for employment in Florida or terminate a Florida-based employee because the applicant or employee has a medical marijuana card?

Medical Marijuana and the Workplace

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Question: Can an employer fire an employee in Florida who tests positive for marijuana if the employee holds a valid medical marijuana card?

Medical Marijuana and the Workplace

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Question: Does the legalization of medical marijuana at the state level affect an employee’s rights and an employer’s obligations under federal laws such as the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Leave Act (ADA)?

Medical Marijuana and the Workplace

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Question: Can a terminated employee sue an employer in state court for discrimination or wrongful termination under the Florida Civil Rights Act because of or arising out of the employee’s lawful use of medical marijuana?

Medical Marijuana and the Workplace

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Question: How does the legalization of medical marijuana affect a Florida-based private employer’s right to drug test its employees randomly?

Medical Marijuana and the Workplace

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Question: How does the legalization of medical marijuana affect a private employer’s establishment and maintenance of a Drug Free Workplace under Chapter 440, Florida Statutes?

Medical Marijuana and the Workplace

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Question: What should Florida employers consider when drafting their handbooks/drug policies?

Medical Marijuana and the Workplace

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Question: Should a company that operates in Florida as well as other states with different laws governing cannabis do anything differently?

Medical Marijuana and the Workplace – Hypothetical Case Studies

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Employee A reports to work smelling of pot.  He does not appear impaired.  Coworkers complained to HR.  He says he was lawfully smoking medical marijuana at home before work.

Medical Marijuana and the Workplace – Hypothetical Case Studies

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Employee B brings a doctor’s note stating that she has a disability and requires regular breaks to ingest/smoke medical marijuana for which she has a valid prescription.

Medical Marijuana and the Workplace – Hypothetical Case Studies

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Employee C works for a company with 100 employees at her worksite.  She has been employed for several years and works full time.  Employee C requests FMLA leave so that she can obtain treatment (e.g, smoking marijuana with time for any “impairment” to dissipate or, if the employer drug tests, time for the THC to leave her system).

Medical Marijuana and the Workplace – Hypothetical Case Studies

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Employee D has epilepsy, which is known by the HR Director and his immediate supervisor.  Employee D, armed with a note from his health care provider, asks for time off of work to experiment with a new drug, Epidiolex, to see if the drug works for him and to ensure that he experiences no adverse side effects. 

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