Florida Introduces Employment Protections for Medical Marijuana Users

October 25, 2023

A Florida lawmaker recently introduced a bill to improve employment protections. This bill is the Protections for Public Employees Who Use Medical Marijuana as Qualified Patients (SB 166). 

It would protect medical marijuana users from adverse employment-related actions. In addition, it would create a structure when testing public employees for marijuana usage. State Senator Tina Scott Polsky pre-filed SB 166 to protect qualified medical marijuana patients from adverse personnel actions.

SB 166 Effects

However, SB 166 only applies to public employers and not to workers and applicants for private employers. It also provides carve-outs for law enforcement agencies. These carve-outs allow the agencies to maintain policies that prohibit medical marijuana usage. Furthermore, SB 166 provides exceptions allowing employers to take adverse action under qualifying circumstances. 

Employers must “[establish] a preponderance of the evidence that the lawful use of medical marijuana is impairing the employee’s ability to perform his or her job duties or responsibilities.” According to the bill, employers may consider individuals impaired if they display specific articulable symptoms. However, these symptoms must adversely impact the individual’s performance of duties or responsibilities. 

Bill Requirements

SB 166 also requires employers to make reasonable accommodations for medical marijuana users. However, the bill also included an exception for specific circumstances. It states that an employer must “demonstrate that the accommodation would pose a threat of harm or danger to persons or property, impose an undue hardship on the employer, or prevent an employee from fulfilling his or her job responsibilities.”

Furthermore, the bill addressed concerns for employers with drug testing policies. It requires them to provide a written notice to applicants or employees whose tests received positive results. According to SB 166, employers must inform them of their right to request a confirmation test. Otherwise, they must ensure the individuals understand they can submit information to contest or explain the results. Individuals may provide a physician certification for medical marijuana or a registry identification card as a part of such an explanation.

Finally, SB 166 would give employees or applicants the right to institute a civil action to request relief from the courts. It would allow a judge to issue an injunction against employer policies that violate the legislation. This ability also extends to reinstating fired employees to the same or equivalent position with all fringe benefits and seniority rights and ordering back pay and other compensation. 

Should relevant Senate committees approve SB 166, it would affect only public employers. However, private employers should consider reviewing their policies concerning marijuana drug testing, too. Preparing to comply with future marijuana-related employment laws will ensure employers avoid unexpected legal challenges.

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