Page 13 - Cannabis News Florida August 2019

Dude, Where’s My Job?

Employee Protection for Off-Site Marijuana Use Under Florida Law

The Americans with Disabilities Act Corp., et al., No. PC-2014-5680 (R.I. for this in its statute by providing that "a
(“ADA”) prohibits employers from dis- Super. Ct., May 23, 2017), the Rhode registered qualifying patient shall not be
criminating against qualified individuals Island court ruled in favor of the employ- considered to be under the influence of
on the basis of disability, which is ee and held that the employer was marijuana solely because of the presence
defined to include a broad array of required to accommodate off-site use of metabolites or components of mari-
impaired conditions. Under the ADA, the even though the state statute provided juana that appear in insufficient concen-
employer must provide reasonable that an employer is not required to tration to cause impairment." See A.R.S.
accommodations to the disabled employ- “accommodate the medical use of mari- §36-2814(A)(3). While the Florida
ee so that the employee can perform juana in any workplace.” statute does not contain such language, it
essential duties of the job. Similarly, the The basis for these decisions is simple: is likely that a Florida court can draw a
State of Florida prohibits disability dis- by explicitly permitting employers to similar conclusion based on the implied
crimination pursuant to Section 760.10, prohibit on-site marijuana use, the legis- prohibition on employers prohibiting
Florida Statutes. Thus, employer disabil- lature was impliedly prohibiting employ- off-site use.
ity discrimination in Florida is prohibit- BY DUSTIN ROBINSON, ers from prohibiting off-site marijuana One additional wrinkle to this analysis
ed from a federal and state perspective. ESQ. CPA use. Although these court cases are not results from the recent legalization of
For medical marijuana use, the Florida binding on the Florida court, these cases hemp federally and in Florida statutes.
Constitution and Florida Statute carve should be persuasive authority to a Hemp is defined as having no more than
out a limited exception to these employ- holder in Florida. Florida court. Indeed, the Florida courts .3% THC. THC is no longer a Schedule I
ee protections. The Florida Constitution While a Florida court has not had the have repeatedly adopted the rule of statu- drug as long as it is derived from hemp.
specifies that employers do not need to opportunity to interpret the above med- tory construction that the expression of This begs the question: Will a Medical
provide accommodations for “on-site” ical marijuana exception in the Florida one thing is the exclusion of the other. Review Officer be able to conclude
medical marijuana use. Art. X. § 29 Fla. Constitution and Florida Statutes, sever- See e.g., Headley v. City of Miami, 215 whether a positive THC test is derived
Const. Similarly, the Florida statute spec- al courts in other states have interpreted So.3d 1, 9 (Fla. 2017); Young v. from the use of legal hemp or federally-
ifies that employers are not required to similar provisions in favor of the employ- Progressive Southeastern Ins. Co., 753 So. illegal marijuana? If not, then even
provide accommodations for medical use ee: 2d 80, 85 (Fla. 2000). employee’s without medical marijuana
of marijuana “in any workplace or any • In Barbuto v. Advantage Sales and If the Florida court accepts the inter- cards may have some protections from
employee working while under the influ- Marketing, LLC, 477 Mass. 456 (2017), pretation that an employer cannot dis- positive THC tests. Time will tell how
ence of marijuana.” Fla. Stat. § 381.986. the Massachusetts court ruled in favor of criminate against off-site use of medical Florida courts will rule on this issue.
Under this authority, employers through- the employee and held that because the marijuana, then an employer would not
out the state are discriminating against state law specifically allowed employers be able take an adverse action against an
medical marijuana cardholders for test- to prohibit on-site marijuana use, it employee for merely testing positive for Dustin Robinson, Esq. CPA, Founding
ing positive for THC. But, in my legal “implicitly recognizes” that allowing off- THC. Instead, the employer would need Partner of Mr. Cannabis Law, can be
opinion, testing positive for THC cannot site medical marijuana use would be a additional evidence that the employee reached at drobinson@mrcannabislaw.com
be the sole basis for taking an adverse permissible accommodation. was actually impaired while on-site. or (954) 258-6084 or visit
action against a medical marijuana card- • In Callaghan v. Darlington Fabrics Arizona, for example, explicitly accounts www.mrcannabislaw.com.

Tara Tedrow Chosen To Chair

State Hemp Advisory Committee

Tara Tedrow has been chosen to chair the group
tasked with creating rules for Florida’s newest
Florida’s Resource for CONSULTANT
Medical & Business Cannabis Developments Andrew Felix industry. Doing which Tedrow gave a quick run-
down of what she does during the first Hemp
PO Box 812708 CONTRIBUTING WRITERS Advisory Committee meeting.
Boca Raton, FL 33481-2708 Daniel Casciato "I’m a chair holder at the firm Lowndes,
Phone: (561) 368-6950 Barbara Fallon
Vanessa Orr Drosdick, Kantor & Reed in Orlando. I chair our
Website: Lois Thomson firms' Cannabis and Controlled Practices group.
www.cannabisnewsflorida.com I’m a Vice-Chair of an American Bar Association
SUBSCRIPTIONS
CHARLES FELIX One Year - $45 marijuana law group, happy to serve in this posi-
CAROL FELIX Two Years - $70 tion. And I’m also a professor at the University of
Publishers Three Years - $85 Florida I teach the only Marijuana Law & Policy

To subscribe, call (561) 368-6950 course there," explaind Tedrow.
NANCY LAMMIE Or email: The committee also chose Cole Peacock as Tara Tedrow
JMC Graphics Vice-Chair. He is a fifth-generation peanut
Art/Production carol@cannabisnewsflorida.com farmer. For the Secretary, they chose Kyle Story a

JUDY GRAMM All rights reserved. Reproduction fourth-generation farmer who grows citrus
Editorial Manager In whole or part without written peaches and blueberries.
permission is prohibited.
Copyright ©2019

36 August 2019 cannabisnewsflorida.com Cannabis News Florida