Reefer Mania: The State of Medical Marijuana in Florida

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1 Reefer Mania: The State of Medical Marijuana in Florida Amanda G. Chafin Brief History of Medical Marijuana in Florida May 2014 Legislature approves Compassionate Medical Cannabis Act, Fla. Stat Permits physicians to prescribe low-thc cannabis to treat a qualified patient who suffers from cancer or a medical condition that causes chronic seizures or muscle spasms Non-euphoric strain of marijuana ( Charlotte s Web ) Specifically prohibits use of medical marijuana in the workplace Due to legal disputes and licensing process, patients did not begin receiving medication until late

2 Amendment 2 Article X, Section 29, Fla. Const. November 2016 Amendment 2 passes with the support of 71% of Florida voters. Permits physicians to prescribe medical marijuana to patients with a debilitating medical condition. Debilitating medical condition = cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn s disease, Parkinson s disease, multiple sclerosis, or other debilitating medical conditions of the same kind or class as or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient. 3 What Happens Now? Playing the waiting game 4 2

3 Tick Tock Florida Department of Health Regulations Must have rules issued by July 3 rd and begin issuing medical marijana cards by October 2017 Proposed regulations issued Jan. 17 th Do not address any employment issues Limits who decides what a debilitating condition is to Florida Board of Medicine (versus physicians) Holding public meetings Feb. 6-9 th in Jacksonville, Fort Lauderdale, Tampa, Orlando, and Tallahassee 5 Tick Tock Implementing legislation - No real deadline SB 406 introduced 1/19/17 specifically addresses medical marijuana use in the workplace Prohibits use or administration of marijuana in place of employment, if restricted by employer [D]oes not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. 6 3

4 What about Federal Law? Directly conflicts with the federal Controlled Substance Act which identifies marijuana as an unlawful Schedule 1 controlled substance Federally mandated drug-free workplace programs (e.g. DOT) require employers to report positive marijuana test results, regardless of whether an employee s use of marijuana is for medicinal purposes Unclear how President Trump and the new administration will address this issue 7 Other Considerations The Americans with Disabilities Act ( ADA ) and the Rehabilitation Act 504 Florida Civil Rights Act ( FCRA ) Occupational Safety and Health Administration ( OSHA ) Private employers Bargaining Agreements 8 4

5 ADA and Rehab Act ADA Title I: Applies to employers with 15 or more employees Title II: Applies to all state and local governmental entities Rehabilitation Act 504: Applies to recipients of federal financial assistance 9 ADA and Rehab Act Two central obligations Prohibition against discrimination and retaliation Reasonable accommodation for employees (and students) with disabilities However, because medical marijuana remains illegal under federal law, employers are not required to accommodate its use under the ADA and the Rehabilitation Act 10 5

6 Florida Civil Rights Act Similar to the ADA and Rehab Act, prohibits discrimination on the basis of a disability and requires employers to reasonably accommodate employees and applicants with qualified disabilities Interaction with Amendment 2 Nothing in this section requires the violation of federal law or purports to give immunity under federal law. Nothing in this section shall require any accommodation of any onsite medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place. Amendment 2 does not include an anti-discrimination clause 11 So Problem Solved? Not exactly Amendment 2 is not the final word on this issue Zero-tolerance policy? Anti-discrimination clause? Debilitating medical condition will likely trigger duty to engage in the interactive process Duty to accommodate underlying medical condition But allowing onsite use of medical marijuana will not be a reasonable accommodation 12 6

7 Accommodation What we know NOW What is the employer s duty to accommodate? Right to request confirmation that employee is actual valid cardholder Involve the employee s doctor Ask about extent, nature, severity, and duration of any impairment Functional limitations Doctor s ideas of reasonable accommodations Give a job description 13 Accommodation What we know NOW Like other requests for ADA accommodations, an individual s essential job requirements are key in determining whether the use of medical marijuana (as an exception to the employer s drug and alcohol policy) is reasonable Do not have to allow employee to use medical marijuana while at work ADA and FCRA do not require employer to permit employee to be under the influence at work - employee can t come to work high 14 7

8 Types of Reasonable Accommodations Leave of absence beyond FMLA Modified work schedules Modified work duties (besides essential functions) Job restructuring Reassignment to a vacant position Acquiring or modifying equipment Changing exams, training materials, or policies 15 OSHA Private Employers General duty clause, Section 5(a)(1) - employers are required to provide their employees with a place of employment that "is free from recognizable hazards that are causing or likely to cause death or serious harm to employees" What does this mean? Cannot compromise workplace safety due to employee s use of legal prescription medication which includes medical marijuana Continue to have drug-free workplace policies Prohibit the use of or being under the influence of alcohol, illegal drugs, and controlled substances, including medical marijuana, while at work 16 8

9 Collective Bargaining Agreements Drug testing is a mandatory subject of bargaining Must notify union and give chance to negotiate before making substantive changes 17 What Should You Do? 18 9

10 Discipline What we know for certain Not permitted to allow employees to use medical marijuana in the workplace Cannot take any act that would constitute a violation of federal law Can fire employees or withdraw offer from applicants if they test positive for marijuana and are not a cardholder What is uncertain under the current state of the law: Disciplining employees who are under the influence of medical marijuana in the workplace Withdraw offer for applicant who tests positive for marijuana if they are a cardholder 19 Options No drug testing (do not recommend) Say NO to marijuana regardless of medical status Incorporate it into your drug and alcohol policies and practices How? 20 10

11 Best Practices D&A Policy 21 Drug and Alcohol Policy Focus on WORKPLACE SAFETY Prohibit the manufacture, solicitation, distribution, possession, purchase, sale, or trade of illegal substances Prohibit the illegal use or misuse of prescription drugs or over-the-counter medicines Have clear statement: The organization does not tolerate the possession, use of, or impairment from marijuana, whether medically prescribed or otherwise, at the workplace 22 11

12 Drug and Alcohol Policy Require employees to disclose medications or substances that have an impairing effect Where job safety or performance will be impaired by the use of a medicine or substance, including medical marijuana, an employee must inform [DESIGNATED OFFICIAL] of the use of any prescription medicines before reporting to work. The organization may engage in the interactive process with the employee or refer an employee to an approved referring physician or Medical Review Officer (MRO) to determine the employee s fitness for duty and if he or she can safely perform work while on the medication. Treat ALL impairing effect substances equally 23 Drug and Alcohol Policy Types of testing (depends on public vs. private) Private: pre-employment, post-accident, random, reasonable suspicion, fitness-for-duty Public: Fourth Amendment constitutional concerns Pre-employment for applicants in special-risk or mandatory-testing positions Suspicionless, random testing where job entails safety-sensitive requirements or special risks Reasonable suspicion that employee may be impaired 24 12

13 Drug and Alcohol Policy Ensure testing method will catch active use: Tetrahydrocannabinal (THC) produces psychoactive effects (the high ) and contains both inactive and active compounds Cannabidiol (CBD) does not produce psychoactive effects Tests that detect marijuana use: Urine detects inactive compounds of THC which may reflect use from days or weeks prior Blood detects active THC compounds Oral fluid detects active THC compounds 25 Drug and Alcohol Policy Train supervisors on drug and alcohol policy and how to articulate reasonable suspicion How to spot workplace related impairing effects of illegal substances, controlled substances (including medical marijuana), and alcohol Decreased cognitive function Slurred speech, glassy eyes Drowsiness and fatigue Give consistent message to all employees regarding health and safety 26 13

14 Bottom Line Do not have to allow medical marijuana use at work Recreational or unauthorized use of marijuana remains illegal and is a valid basis for termination of an employee 27 Other Best Practices Job descriptions Clarify essential functions of the job to assist in any accommodation process Buzzwords: ability to work in constant state of alertness and safe manner Ensure that justifications and safety-sensitive positions, including any task that may be deemed life threatening, are fully explained 28 14

15 What to Watch For In Florida Anti-discrimination clause Impaired/influenced language Specifying cut-off levels of THC for drug testing Federal issues ADA or Rehab Act clarifications on medical marijuana 29 Questions? Amanda Chafin