By: Austen Erblat
Having a Florida medical marijuana card doesn’t shield workers from being fired from their workplace over drug use.
A contradictory patchwork of rules has left some people bewildered: They’re surprised when their drug-free workplaces take action against them — invoking the federal law that bans marijuana — even though a majority of Florida voters backed medical marijuana in 2016.
Now, as a newly proposed state law aims to finally clarify the rights of workers who use medical marijuana, experts are weighing in on how to best handle any potential workplace woes that result from its use.
What’s being done to help workers?
A new bill coming before the state Legislature this year aims to boost workplace protections for people who use medical marijuana, after some employees in Florida have lost their jobs over using medical pot. Among those fired in recent years have been a U.S. Marine veteran with PTSD from Ocala, a Brevard County teacher and an information-technology worker in West Palm Beach.
State Sen. Tina Polsky, D-Boca Raton, filed a bill that would protect state and local government employees in Florida from discipline at work for using medical marijuana under the recommendation of their physician. State Rep. Nicholas Duran, D-Miami, also filed an identical bill in the state House.
Polsky filed a similar bill in last year’s legislative session when she was a state representative to protect all Floridians, including private sector employees. That bill failed in committee, so she’s trying again with a narrower focus.
The bills, if passed, are worded to still allow employers to prohibit marijuana use on the clock. But they would prohibit employers from taking any adverse personnel action, including refusal to hire or employ; the discharge, suspension, transfer or demotion of a worker; forcing a mandatory retirement; or discrimination against a qualified patient, according to the bills’ language.
Some workplaces may feel they’re bound by federal law, while others may be unknowingly breaking it.
“They should know that they’re allowed to keep someone if they have a medical marijuana card,” Polsky said. “They may want an employee to stay but feel they’re forced to terminate them.”
The state legislative session began last week, and Polsky said she faces an uphill battle in having her bill heard. “You can’t put [medical marijuana] out there into the public and not fix this,” Polsky said. “You have to give employees and employers the information that they need.”
Workers “should not be faulted if it has nothing to do with their performance.”
I have a medical marijuana card. Should I tell my employer and, if so, when?
Honesty is the best policy when talking with your employer about your use of medical marijuana, according to attorney Dustin Robinson, founding partner of Fort Lauderdale-based Mr. Cannabis Law, which specializes in legal issues surrounding medical marijuana and psychedelic drugs.
“My policy is: ‘If they ask you, always be honest,’” Robinson said. “There might be [medical privacy law] implications, so I don’t know that an employer would even be allowed to ask that.”
“But if you know you’re going to get drug tested, I would be open and honest with my employer and let them know I have a medical marijuana card.”
To use medical marijuana in Florida in compliance with state law, first you need to get a card from a physician who is specially trained and certified by the state. The Florida Office of Medical Marijuana keeps a directory of those physicians on its website under the “Patients” tab and then “Qualified Physician Search.”
In Florida, medical marijuana is recommended for serious health conditions such as cancer, Crohn’s disease, multiple sclerosis and post-traumatic stress disorder. But doctors also can recommend medical marijuana for chronic pain or other conditions related to those approved by the state.
Appointments are typically $169 to $300 and state law requires an appointment every seven months. The cards are $75, paid to the state, which typically takes about 10 days to review and process payments, but they could take longer due to recent increases in applications.
Once people have a card, they may purchase medical marijuana from a dispensary, because doctors cannot sell the product itself.
While some employers have zero-tolerance policies, others take a progressive approach to discipline that may start with a warning or suspension and repeat offenses could result in termination. Some workplaces are turning a blind eye to marijuana use completely. Your options in talking with your employer about medical marijuana will depend on a lot of details, such as who you work for and what you do.
“It’s a tough question,” Robinson said. “There’s no right answer.”
Do drug tests show if an employee recently used medical marijuana?
“Marijuana is unique in that there are no drug tests that show whether you’re impaired when you take the test versus having taken the drug the day before or a week prior,” said Cathleen Scott, managing partner at Scott Wagner and Associates, a West Palm Beach law firm that specializes in employment, civil rights and health care law.
The duration that marijuana can stay in someone’s system depends on how often they use it, but most urine tests can detect marijuana multiple days or even over a month after someone last used it.
So an employee who uses medical marijuana to treat a chronic illness or severe anxiety each night can go to work the next day completely sober, but if they’re tested for marijuana, they will likely receive a positive result.
Can companies have their workers’ cars searched for marijuana?
This depends on a variety of factors, including employee policies, who owns the vehicle and where an employee’s car is parked. If an employer owns the vehicle, they can almost always search it. Employees enjoy more privacy when they own or lease the cars they take to and from work.
If parked in a private parking lot or garage owned by your employer, they may be able to check your car for the presence of drugs, Robinson said. If parked in a public place like a shared garage, a shopping plaza’s parking lot or on the street, you have more protection, he said.
“That would be dependent on the workplace policy,” Robinson said. “Just the same, trying to search someone’s purse for substances just comes down to what that workplace policy is.”
Are there companies that have stopped testing for marijuana?
More companies are dropping marijuana tests, out of concern for losing talented workers, Scott said.
Autonation, the largest car dealer in the U.S., quietly stopped testing job applicants for marijuana in 2016. They still ban employees from using medical marijuana at work and employees who get into a car accident while driving on the job, for example, can still be fired if they test positive for marijuana.
The company’s CEO publicly announced the change two years later.
The common thread, even among progressive workplaces, is that what you do at home and on your time is your business, just don’t show up to work impaired. If medical marijuana is taking a visible toll on your performance, you should expect to be tested and prepared to be disciplined or fired.
Many employers have moved away from testing for marijuana, even though they may not publicize their policies.
What option do workers have if they’ve been fired for medical marijuana use?
Experts agree that workers could have a few options in arguing that their firing was illegal or violated workplace policies.
The Americans with Disabilities Act does not protect medical marijuana users, because marijuana is still federally illegal.
The Florida Civil Rights Act, however, protects against unfair discrimination, including on the basis of a disability, employment lawyers say. That worker may need to provide evidence to a court of a genuine disability, such as medical records.
If an employee of a workplace that requires reasonable suspicion of drug use before a drug test is tested without that bar being met, there could also be constitutional issues, said Scott.