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Can an Employer in Florida Legally Terminate

a Medical Marijuana User? It Depends …

I am another lawyer a drug-free workplace poli- Stat. 381.986.” gants will be exploring comparable legal
who says “it depends” in cy and thus should be able I have no stake in the outcome of the theories as McDuffie when a medical
response to this question to legally terminate an case and have extensive experience han- marijuana user suffers an adverse
and the reason is because employee for violating it by dling cases on behalf of both employees employment action his/her employer.
we have had decisions using medical marijuana. So and employers. In my opinion, this is a Companies need to understand the
from Connecticut, employers shouldn’t be wor- tough case because Florida law specifi- laws that apply to them and need to be
Massachusetts and ried about lawsuits when cally states that an employer is free to prepared to address what to do if and
Rhode Island which have they enforce their drug-free enforce a drug-free workplace and that when they have medical marijuana users
held that employers can- workplace policies, right? the law does not provide a cause of in their workplaces.
not take an adverse Not so fast … action against an employer for wrongful Unfortunately, there is no one-size-fits-
employment action There is a recent lawsuit discharge or discrimination. Other states all policy for handling medical marijuana
against a medical mari- captioned McDuffie v. City have laws on the book which expressly users especially for multi-state employers
juana user (for that rea- of Miami pending in Miami- prohibit employment discrimination where the law varies by state. Thus, I rec-
son). However, we had BY ADAM KEMPER, ESQ. Dade Circuit Court which against medical marijuana users. Florida ommend conferring with a qualified
courts in California, was filed by a medical mari- does not have such a law in place. labor and employment attorney on
Oregon, Washington and juana user who was termi- Therefore, McDuffie had no choice but whether it is permissible to take an
Colorado for example uphold an nated after failing a drug test. McDuffie is to try his legal theory of disability dis- adverse employment action against a
employer’s decision to take an adverse suing the City of Miami (the “City”) on crimination under the FCRA. The ques- medical marijuana user before taking the
employment action against a medical the basis that he was terminated because tion is whether McDuffie was discrimi- action to avoid a possible lawsuit.
marijuana user. of his medical use of cannabis due to his nated against due to his disability or
In light of the difference of opinion on disability. McDuffie alleges that he was whether the City took all actions against
this topic, “it depends” is actually an issued medical cannabis in July 2017 and him for legitimate, non-discriminatory Adam Kemper, Esq., Senior Counsel of
appropriate response. that he notified his supervisor of his reasons (violating the City’s drug-free Greenspoon Marder LLP, can be reached at
In Florida, we do not have an answer medical cannabis usage. In November workplace policy). Adam.Kemper@gmlaw.com
from the courts yet … The medical mar- 2017, he interviewed for a new position We are going to continue to see more or (954) 491-1120.
ijuana laws do, however, provide us with with the City, disclosed his medical con- cases throughout the country where liti-
some guidance. dition and use of medical cannabis, took
Florida’s medical marijuana constitu- a drug test which yielded a positive result
tional amendment states that: “Nothing for cannabis and was terminated imme-
in this section shall require any accom- diately thereafter.
modation of any on-site medical use of McDuffie sued the City pursuant to the
marijuana … in any place of employ- Florida Civil Rights Act of 1992
ment.” Florida Statute 381.986(15) (“FCRA”) which states that “it is unlaw-
states that: “This section does not limit ful for an employer to discriminate …
the ability of an employer to … enforce a against an individual because of such
drug-free workplace program or policy. individual’s … disability.” Notably, Mr.
This section does not require an employ- McDuffie did not cite to any violation of
er to accommodate the medical use of Florida’s medical marijuana laws.
marijuana in any workplace or any The City responded that: “Plaintiff has
employee working while under the influ- failed to state a cause of action in that
ence of marijuana. This section does not this case is frivolous from the outset and
create a cause of action against an the City is entitled to its attorneys’ fees.”
employer for wrongful discharge or dis- The City also stated that it is “a drug free
crimination.” workplace and thus the City is exempt
Thus, in Florida, an employer can have from any of the provisions found in Fla.

South Florida Hospital News southfloridahospitalnews.com December 2018 39