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Florida’s recent move to approve a more comprehensive public medical marijuana program will have a considerable impact on employers in the 2018. In November 2016, Florida, along with Arkansas, North Dakota, and Montana, voted to join the 25 other states that had previously approved public medical marijuana programs. Florida law provides little guidance for construction companies that are wondering exactly how to handle issues that may arise under the new law. Nevertheless, an examination of laws in other states by our Fort Lauderdale construction lawyers could offer reliable insight.
Construction is a generally hazardous occupation. The Occupational Safety and Health Administration Act requires employers to maintain a work environment that is “free from recognized hazards.” Therefore any degree of marijuana-induced impairment may compromise workplace safety. Therefore, members of the construction industry are unwilling to compromise safety standards on job sites in response to the legalization of medical marijuana in Florida. Employers avoid potential liability by imposing zero tolerance policies for marijuana possession, use, and impairment. On federal construction projects, the law is extremely clear. Because federal law is always supreme over state law, contractors, subcontractors, suppliers, and laborers who are working on a federal project may not use marijuana, regardless whether local state law permits marijuana use.
In 2014, Florida Governor Rick Scott signed SB 1030, also referred to as the Charlotte’s Webb bill. The law permitted terminally ill patients as well as those suffering from chronic seizures and/or severe muscle spasms to receive a low-THC strain of cannabis for treatment purposes. Because the law called for a small percentage of patients to be permitted to use a low potency strain, medical marijuana advocates criticized the law, calling it inadequate. A more comprehensive medical marijuana program called Amendment 2 appeared on a ballot; however, the program failed to receive the required 60 percent of votes to pass. In 2016, Amendment 2 reappeared on the ballot with more specific terms, including the definition of “debilitating medical condition.” The newer, more detailed version of the proposed law received the support of 70 percent of Florida voters, which was enough for the amendment to pass.
While Florida’s new medical marijuana law does not provide much in the way of specific guidelines for construction companies, the language of the law does specify that companies are not required to make accommodations to allow construction workers to use medical marijuana onsite at the workplace. A similar exemption also exists in most states that have approved public medical marijuana programs. However, some states’ medical marijuana laws include a clause that prohibits discrimination against workers on the basis of having a medical marijuana card. Because Florida’s new law does not include a discrimination clause, local employers may prohibit employees from using marijuana at the workplace.
Under the Americans with Disabilities Act, Broward County construction companies are required to provide reasonable accommodations to employees who have a disability. Florida’s new medical marijuana law may give rise to questions regarding whether an employer must allow employees to use marijuana while at the work site to alleviate a “debilitating medical condition.” Currently, employers are not required by the ADA to permit the use of medical marijuana as courts have unanimously held that employers are not required to accommodate the marijuana use, possession, or impairment in construction workers while on the job. The ADA states that people who are currently using an illegal drug are not considered to be “qualified” people with a disability. Therefore, they are not protected by the ADA. Despite being legal for medical use in Florida, marijuana is still illegal under federal law; therefore, it is an illegal drug under ACA.
In most states, employers who have implemented a zero tolerance drug policy may fire or even refuse to hire employees and prospects who fail a drug test for marijuana even if obtained legally. Current marijuana tests may indicate the presence of cannabis even if weeks have passed since the employee last used the substance. Therefore, an employee’s off-duty drug use may lead to job termination. To protect employees who use marijuana for permitted medical uses, some states require employers to provide additional evidence of impairment in addition to a failed drug test. Florida currently does not have an “impairment plus” statute; therefore, construction companies may simply terminate employees based solely on a failed drug test. If Florida adopts an impairment plus policy in the future, employers must then train managers in detecting signs of impairment, taking witness statements, and otherwise taking steps to accurately document cases of marijuana impairment.
Fort Lauderdale construction firms may also question whether they will be required to accommodate an employee’s medical marijuana use while off duty. While Florida employers are not currently required to accommodate off-duty marijuana use, circumstances may arise in which a court may consider off-duty medical use to be reasonable accommodation. Furthermore, although medical marijuana is not covered under the ADA, an examination of an employee’s status as a medical user may reveal the condition for which the worker is being treated. If the underlying condition constitutes a qualifying disability, the employer may be required to discuss reasonable accommodations other than marijuana use with the employee. The Family Medical Leave Act may also be applicable to the employee’s circumstances.
As of now, not much has changed for employers in Florida’s construction industry regarding making accommodations for medical marijuana. However, employers may be required to engage in the interactive process of discussing alternative reasonable accommodations, apart from medical marijuana use, if an employee’s qualifying medical condition is revealed to an employer as a result of his or her participation in the state’s medical marijuana program. Always consult with an experienced Hollywood construction attorney for guidance on your unique situation in Fort Lauderdale or Elsewhere in Broward County.