Smoking Medical Marijuana is Now Legal: What Employers Need to Know

Governor Ron DeSantis signed SB 182 on March 18. The bill eliminated the ban on smoking medical marijuana in Florida. The change in law may not directly impact the way your organization provides services. However, it could have an impact on you as an employer – particularly if you operate a drug-free or smoke-free campus or facility.

The bill called for elimination of the ban on smoking medical marijuana to go into effect immediately upon becoming law – so smoking medical marijuana became legal on March 18, 2019.

Before amended by SB 182, Florida law did not include the use of medical marijuana in a qualified patient’s place of employment in the definition of “medical use” of the drug – except when permitted by his or her employer. The new law goes further to state “the smoking of marijuana in an enclosed indoor workplace” is not considered “medical use” of the drug.

Under the law, employers are authorized to establish, continue, or enforce a drug-free workplace program or policy and employers are not required to accommodate the medical use of marijuana in any workplace or for any employee working while under the influence of marijuana. Finally, the law clarifies the provisions related to medical marijuana do not create a cause of action against an employer for wrongful discharge or discrimination.

The changes to state law appear fairly straightforward, with appropriate protections for employers who want to enforce drug-free and smoke-free policies.

However, while medical marijuana is legal in Florida, it is still considered an illegal drug under federal law. This can create confusion if an employee requests a reasonable accommodation under the federal Americans with Disabilities Act (ADA) to use medical marijuana while at work to treat a medical condition. The ADA allows employers to prohibit current illegal use of drugs and alcohol in the workplace and to require employees report for duty without engaging in the unlawful use of drugs.

Additionally, federal courts have ruled the ADA does not require a medical marijuana accommodation. Litigation as to the applicability of the ADA in states where medical marijuana is legal have produced verdicts in favor of both employers and employees. Until state and federal laws on the legality of medical marijuana are reconciled, employers should examine their workplace policies carefully and ensure they are consistently and equitably applied.