Can Employees Be Fired in Florida for Using Medical Marijuana?

Florida headlines continue to feature workers who are losing their jobs due to legal medical marijuana use. Patients who find great relief from their doctor-prescribed medical cannabis have found themselves facing serious concerns about their livelihood.

In March, a teacher was fired by the Brevard County School Board for disclosing to workers’ compensation that she uses medical marijuana to manage pain for her health conditions. After years of suffering from severe neck and spinal ailments, arthritis, and fibromyalgia, Allison Enright’s doctor suggested that medical marijuana could provide relief from her chronic, debilitating pain without the negative side effects of opioids.

She had been taking nearly 70 prescription medications every day, deteriorating her body, and profoundly impacting her quality of life. She describes medical marijuana as a miracle and never anticipated that she could be fired after 30 years of teaching for following the advice of her doctor.

Allison’s story may seem surprising, but it is nothing new. In September, a Marion County high school administrator was fired for failing a drug test. Then, in March, the deputy chief of information technology in West Palm Beach was terminated for the same reason, even though they were both legal medical marijuana patients.

These stories draw attention to an alarming yet widely unknown fact – the legality of medical marijuana use for Florida patients with qualified medical conditions does not prevent these patients from losing their jobs or being denied new positions due to their participation in state medical marijuana programs.

Medical Marijuana Legislation in Florida

Fifteen states with medical marijuana and the District of Columbia have passed laws protecting employees from being discriminated against because of their cardholder status or being terminated after testing positive for marijuana on a drug screening.

Some of them even require that employers make reasonable accommodations for workers, such as allowing them to adjust their work schedules. However, they can still terminate workers for using cannabis at work or for impaired performance during work hours. Despite several attempts to extend employee protections, Florida has yet to pass laws that adequately protect employees from termination due to medical marijuana.

The state of Florida legalized medical marijuana in 2014 with the Compassionate Use Act, although this only allowed patients with cancer or epilepsy to purchase marijuana. In 2016, the Right to Try Act expanded the law to include full potency cannabis for patients with terminal medical conditions.

Later that year, a citizen referendum introduced the Florida Medical Marijuana Legalization Initiative, passing with a 71.3% majority and mandating further expansion of the state program. However, this amendment did not include any explicit language that would protect workers from being fired for consumption.

Florida’s medical marijuana laws state that a patient who uses medical cannabis to treat a qualifying condition may not be subject to criminal or civil sanctions, but termination can clearly be considered a sanction. Representative Michael Grieco questions, “We can’t discriminate against people for other types of medications that they’re taking or other disabilities that they have, so why should marijuana be treated any differently?”

Medical Marijuana Employee Protection Act

Employee protection acts have been instituted in few states.

Florida legislators have been working to resolve this issue, and in 2020, the Medical Marijuana Employee Protection Act (HB 595/SB 962) was introduced by Senator Tina Polsky. This law would prohibit an employer from taking any form of adverse action against an employee or applicant for using medical cannabis, such as demotion or termination.

It would also require the employer to submit written notice within five days after a positive test result to explain their rights and give terminated or penalized workers the right to sue for damages and reinstatement.

However, it does allow employers to enforce zero-tolerance drug policies and permit them to terminate workers if they show impaired performance because of cannabis use or create a safety hazard for others. It does not cover federal employees or employees who perform safety-sensitive duties, such as those who handle hazardous materials or chemicals, operate vehicles or other motorized equipment, work with patients or children, or manufacture and dispense pharmaceuticals.

Unfortunately, this Act did not receive any committee hearings and therefore has effectively failed, leaving Florida’s 500,000 medical marijuana patients with no state-protected job security.

Can You Get Fired for Having a Medical Card in Florida?

Because obtaining a medical marijuana card requires approval from a certified physician, participation in the state’s program is considered protected health information under the federal Health Insurance Portability and Accountability Act (HIPAA). An employer will not be notified if a worker obtains a medical marijuana card, and they cannot legally contact state agencies to find out if a worker is a registered cardholder.

Employees are not required to report that they use medical marijuana unless they have already disclosed that they have a qualifying health condition, and they are seeking accommodations under the Americans With Disabilities Act or requesting medical leave.

Can You Pass a Drug Test With a Medical Card in 2021?

Florida does not offer employment protection for medical marijuana patients, meaning that testing positive for marijuana on a drug test is still considered failing and can leave workers vulnerable to termination or prohibit them from securing a new position.

Employers who enforce a drug-free workplace can drug test employees, but they must meet certain requirements. Excluding random testing, an employer should provide workers with a minimum of 60-day notice before asking them to take a drug test. They are expected to follow specific procedures while conducting these tests, and state laws outline clear guidelines for collecting specimens, testing them, and keeping the results confidential.

If a workplace did not previously enforce drug-free policies but later changes its policies, they must give workers a written letter that informs them of this change before conducting drug testing. Legally, an employee has the right to refuse to participate in a drug test at their workplace, but the employer has the right to deny employment or dismiss them from their current position because of this refusal.

The employer must provide workers with information regarding the consequences of refusing a drug test and the procedure for contesting a positive result, as well as giving them contact information for drug and alcohol rehabilitation programs.

When Can an Employer Make You Take a Drug Test?

Drug tests can be ordered by employers, but there are certain guidelines they must follow.

An employer can require a worker to take a drug test under the following circumstances:

Job Applicant Testing

If a position requires passing a drug test, the employer must provide written notice to applicants in the job postings or on the application.

Fitness-for-Duty Testing

The employer requires every employee to take a drug test as part of a routinely scheduled fitness-for-duty examination.

Return From Drug Rehabilitation

The employee is returning from rehabilitation after a positive drug test. An employee who voluntarily seeks substance abuse treatment may not be fired, disciplined, or otherwise discriminated against unless they tested positive on a drug screening or received treatment for substance abuse in the past.

Reasonable Suspicion

An employer can claim reasonable suspicion of drug use in these situations:

• The employee is showing abnormal or erratic behavior or other observable differences that lead the employer to reasonably suspect that they are using drugs.
• The employer directly observes the employee using drugs or receives a corroborated report of drug use from a reliable source.
• The employer finds evidence that the employee uses, sells, or possesses drugs at work or that the employee tampered with the results of a drug test.
• The employee causes or contributes to a workplace accident.

If an employer performs a drug test due to reasonable suspicion, they must provide a written account of their reasoning behind this suspicion, keep this documentation confidential, and give a copy of the information to the employee.

Random Drug Testing

Employers may perform random drug tests for all employees, but they are required to utilize an independent third party to choose a computer-generated sample of employees to test that is representative of no more than 10% of the staff. They are also prohibited from performing random drug screenings more than once in a three-month period.

What Happens If You Fail a Drug Test?

Failing a pre-employment drug screening can result in rejection of the employment application. If a current employee tests positive, they must be given five days to explain or contest the results, but they may still be fired even if they are a registered medical marijuana cardholder adhering to all state laws regarding purchase, possession, and use of medical cannabis.

However, because of the possibility of a false positive, the employer cannot take such action until a subsequent confirmation test is performed by a medical review officer and the results of this test verify the presence of marijuana in the worker’s system.

Getting a Job With a Medical Card in Florida

If you are a medical cannabis patient in Florida and you have been asked to take a drug test by a current or prospective employer, you are probably concerned about how your participation in the state medical marijuana program will impact your employment. Sadly, Florida is not one of the few states that have established laws to protect workers from being discriminated against or fired for using medical cannabis.

Even as a registered medical user, you face the same employment consequences as recreational users without medical cards, meaning you can lose your job or be prohibited from securing a new position with no legal recourse. Experts report that the biggest challenge to employment protection is that marijuana is still classified as a Schedule I narcotic under federal law.

Many legislators across the nation have been pushing for a change in status to reflect updated research findings on the safety of cannabis and the myriad benefits it offers users suffering from chronic health conditions. Hopefully, as the medical community continues to accept medical cannabis as a valuable treatment option, more states will amend their laws to add protections for workers and more employers will be willing to adjust their workplace policies to accommodate qualified patients.

By educating the public about medical marijuana, and pushing for new labor laws, we can end the stigma associated with cannabis use. Let’s work together to protect Florida workers from being punished for seeking treatment that relieves their pain and improves their quality of life.