Up in Smoke? Florida’s Failed Medical Marijuana Measure

November 19, 2014Articles The Daily Business Review

Florida is known for sandy beaches, palm trees, laid-back lifestyle and Jimmy Buffett. Accordingly, one would readily assume that the medical marijuana amendment would have easily passed Nov. 4. Indeed, Amendment 2 was even endorsed by Jimmy Buffett.

While Amendment 2 received more votes than Gov. Rick Scott, who was re-elected with 48 percent of the vote, and also more votes than Pam Bondi, who was re-elected as attorney general with 55 percent of the vote. Amendment 2, receiving 58 percent of the vote, failed to receive the 60 percent necessary for it to pass.

Here in South Florida, Amendment 2 received 53 percent in Martin County, 64 percent in Palm Beach County, 58 percent in Broward County, 57 percent in Miami-Dade County and 72 percent in Monroe County. Not surprisingly, the county that encompasses the Florida Keys had the highest percentage of votes in the state in favor of medical marijuana.

Based on post-election reports, it appears that the supporters of Amendment 2 will take steps to put this amendment back on the ballot in 2016. Perhaps a presidential election year will sufficiently increase the voter turnout such that medical marijuana receives the 60 percent necessary to pass.

Assuming the debate over medical marijuana in Florida continues both at the ballot box and in the state Legislature, wise employers should be paying attention. Despite the failure of Amendment 2, Florida already has one medical marijuana law on the books. The Compassionate Medical Cannabis Act of 2014, which approved a low-level THC strain of marijuana known as Charlotte's Web, was set to be legally available for use by medical patients as of Jan. 1. An administrative law judge's decision Friday rejecting an implementing rule may delay that.

Accommodation Request

Employers face a variety of competing and complicated laws when it comes to maintaining a drug-free workplace, maintaining workers' compensation coverage, compliance with federal regulations but also complying with the American with Disabilities Act, the Florida Civil Rights Act and local ordinances, which require employers to make reasonable accommodations to employees with disabilities.

Even assuming medical marijuana is legalized in Florida at some point, either by amendment or by legislative action, until the federal laws change, marijuana remains a Schedule 1 narcotic, and employers who are subject to federal regulation must continue to abide by the applicable federal laws. For example, the state Department of Transportation's Drug and Alcohol Testing Regulation—49 CFR Part 40, at 40.151(e)—does not authorize medical marijuana used pursuant to a state law to be a valid medical explanation for a transportation employee's positive drug test result.

The more complicated and difficult question for employers is how to manage employees seeking an accommodation that allows them to utilize medically prescribed marijuana. Amendment 2 did not require employers to allow employees to come to work under the influence of marijuana. Nor did Amendment 2 require employers to allow employees to utilize medical marijuana on the job.

While Amendment 2 was short on employee protection, meaning that employees generally could be fired by an employer for utilizing medical marijuana, employers know that the actual implementation of human resource policies are always more nuanced and complicated.

Workplace Policies

The ADA, since it's a federal law, would not require an employer to accommodate an employee who seeks to utilize medical marijuana. However, the underlying condition for which the employee is using medical marijuana may be considered a disability under the ADA. Therefore, employers who become aware of medical marijuana use may be charged with engaging in the ADA's interactive process prior to taking any adverse action.

Additionally, the FCRA, a state law which also protects disabled individuals, would likely require a different result assuming medical marijuana was eventually legalized in Florida. Local ordinances may also provide protection to employees as well. These issues will likely need to be resolved in the courts.

Even with the failure of Amendment 2, Florida employers need to be aware of and adjust their workplace policies to be prepared for compliance with the Compassionate Medical Cannabis Act of 2014.

Further, employers, especially multijurisdictional employers, need to regularly review and update policies to comply not only with Florida's laws but the laws of other states in which they operate.

Reprinted with permission from the November 19 issue of The Daily Business Review. (c) 2014 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.