Florida Governor Rick Scott signed SB 1030 today. This law now makes it legal for qualified patients in Florida to take low-THC cannabis in liquid form to treat certain seizure disorders, such as epilepsy and muscle spasms, and for cancer. While SB 1030 will likely not have a huge impact on day-to-day operations in the workplace because the strain of marijuana that is being legalized claims to have no hallucinogenic effect, a broader medical marijuana law, Amendment 2, will appear on Florida’s November ballot.
If passed, Amendment 2 would legalize the cultivation, purchase, possession and use of marijuana (not just low-THC forms) to treat medical conditions. The proposed law would not require Florida employers to accommodate the on-site medical use of marijuana. However, it fails to address how employers should otherwise treat employees who are qualified to use marijuana medically.
How have other states, where medical marijuana laws also do not explicitly provide protected status to patients (California, Montana, Washington and Oregon), addressed the employment issues? Each state’s supreme court has upheld an employer’s decision to terminate employees for their marijuana use outside of the office. These courts held that medical marijuana laws only protect patients from criminal penalties and not from being fired by their employers.
Colorado is a somewhat different animal because marijuana is legal regardless of medical use. In Colorado, state law prohibits the termination of employees for legal activities after work, including using marijuana. However, in late-April one of the state’s appellate courts struck down the law on the basis that the federal government still considers marijuana illegal. The case has been appealed and is now pending before the Colorado Supreme Court.
Florida’s current law and proposed Amendment 2 may also have an effect on employee health insurance and workers’ compensation. A few weeks ago, an appellate court in New Mexico, which has a medical marijuana law similar to Amendment 2, decided that marijuana is a medical expense covered under the state’s workers’ compensation system. The court required reimbursement to the employee for the cost of marijuana to treat chronic back pain caused by a workplace accident.
With no clear precedent established yet, if Amendment 2 passes, Florida employers will have to balance their obligation to keep the workplace safe with the possibility of needing to accommodate employees’ medical use of marijuana. We will keep you updated on this issue.