South Florida Hospital News
Thursday October 17, 2019
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December 2018 - Volume 15 - Issue 6

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Can an Employer in Florida Legally Terminate a Medical Marijuana User? It Depends …

I am another lawyer who says “it depends” in response to this question and the reason is because we have had decisions from Connecticut, Massachusetts and Rhode Island which have held that employers cannot take an adverse employment action against a medical marijuana user (for that reason). However, we had courts in California, Oregon, Washington and Colorado for example uphold an employer’s decision to take an adverse employment action against a medical marijuana user.

In light of the difference of opinion on this topic, “it depends” is actually an appropriate response.
 
In Florida, we do not have an answer from the courts yet … The medical marijuana laws do, however, provide us with some guidance.
 
Florida’s medical marijuana constitutional amendment states that: “Nothing in this section shall require any accommodation of any on-site medical use of marijuana … in any place of employment.” Florida Statute 381.986(15) states that: “This section does not limit the ability of an employer to … enforce a drug-free workplace program or policy. 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. This section does not create a cause of action against an employer for wrongful discharge or discrimination.”
 
Thus, in Florida, an employer can have a drug-free workplace policy and thus should be able to legally terminate an employee for violating it by using medical marijuana. So employers shouldn’t be worried about lawsuits when they enforce their drug-free workplace policies, right?
 
Not so fast …
 
There is a recent lawsuit captioned McDuffie v. City of Miami pending in Miami-Dade Circuit Court which was filed by a medical marijuana user who was terminated after failing a drug test. McDuffie is suing the City of Miami (the “City”) on the basis that he was terminated because of his medical use of cannabis due to his disability. McDuffie alleges that he was issued medical cannabis in July 2017 and that he notified his supervisor of his medical cannabis usage. In November 2017, he interviewed for a new position with the City, disclosed his medical condition and use of medical cannabis, took a drug test which yielded a positive result for cannabis and was terminated immediately thereafter.
 
McDuffie sued the City pursuant to the Florida Civil Rights Act of 1992 (“FCRA”) which states that “it is unlawful for an employer to discriminate … against an individual because of such individual’s … disability.” Notably, Mr. McDuffie did not cite to any violation of Florida’s medical marijuana laws.
 
The City responded that: “Plaintiff has failed to state a cause of action in that this case is frivolous from the outset and the City is entitled to its attorneys’ fees.” The City also stated that it is “a drug free workplace and thus the City is exempt from any of the provisions found in Fla. Stat. 381.986.”
 
I have no stake in the outcome of the case and have extensive experience handling cases on behalf of both employees and employers. In my opinion, this is a tough case because Florida law specifically states that an employer is free to enforce a drug-free workplace and that the law does not provide a cause of action against an employer for wrongful discharge or discrimination. Other states have laws on the book which expressly prohibit employment discrimination against medical marijuana users. Florida does not have such a law in place.
 
Therefore, McDuffie had no choice but to try his legal theory of disability discrimination under the FCRA. The question is whether McDuffie was discriminated against due to his disability or whether the City took all actions against him for legitimate, non-discriminatory reasons (violating the City’s drug-free workplace policy).
 
We are going to continue to see more cases throughout the country where litigants will be exploring comparable legal theories as McDuffie when a medical marijuana user suffers an adverse employment action his/her employer.
 
Companies need to understand the laws that apply to them and need to be prepared to address what to do if and when they have medical marijuana users in their workplaces.
 
Unfortunately, there is no one-size-fits-all policy for handling medical marijuana users especially for multi-state employers where the law varies by state. Thus, I recommend conferring with a qualified labor and employment attorney on whether it is permissible to take an adverse employment action against a medical marijuana user before taking the action to avoid a possible lawsuit.

Adam Kemper, Esq., Senior Counsel of Greenspoon Marder LLP, can be reached at Adam.Kemper@gmlaw.com or (954) 491-1120.

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