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Gunster’s government affairs law & lobbying and labor & employment practice teams are pleased to bring you important news and its impact on Florida business.

With the passage of the Florida Constitutional Amendment 2 (medical marijuana), we expect enacting legislation in the 2017 legislative session to address in part how Florida employers are impacted by this new law. By Florida law, the Constitutional Amendment will be effective Jan. 3, 2017, with six months for implementation.

While the legislative committee process begins in December and lasts into January and February, the formal legislative session will begin March 7, 2017. We anticipate the Senate Health Policy Committee will begin hearings on the issue on Dec. 13, 2016.

We hope you’ll find the frequently asked questions below and subsequent e-alerts a useful tool for staying abreast of changes in the law. Please contact any government affairs or labor & employment team member should you have any questions.

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Q: Can we still fire someone for using medical marijuana?

A: Probably.* Because Florida has not yet enacted the legislation and regulations on how the medical marijuana amendment will be implemented, it is unclear exactly what ramifications there are for employers who want to enforce a policy prohibiting marijuana use. Cases in other states can provide some guidance and most cases recognize that an employer may still refuse to hire, discipline or terminate an employee for marijuana use even when such use is lawful under state law. This is due, in part, because marijuana remains illegal under federal law. However, employers should be cautious when doing so as the medical use of marijuana may implicate certain disabilities or an accommodation for those disabilities under the Americans with Disabilities Act, among others. If an adverse action is being considered, best practices may recommend an employer to tie that decision to either an employee’s demonstrated impairment on the job (which will need to be well-documented) or an identifiable decline in performance. An employer should speak with an employment attorney before taking any disciplinary action related to the medical use of marijuana.

Q: Must we allow an employee to take a break for their medical marijuana use?

A: Probably not.* The amendment specifically carves out an exception that employers are not required to make an accommodation of on-site medical use of marijuana. What is unanswered by the text of the amendment is whether an employer must make a reasonable accommodation under the ADA for off-site medical use of marijuana. Cases in other jurisdictions suggest that because marijuana is still illegal under federal law, an employer does not have a duty to accommodate an employee’s outside use of medical marijuana. (Further, see section below regarding if an employee reports to work under the influence of marijuana.) As the regulations are issued and more information is obtained, employers should consult with an attorney before flatly denying an employee’s request to use medical marijuana off company premises.

Q: What if our employee is in a safety-sensitive position?

A: An employer will likely* be able to enforce a zero-tolerance policy for workers in safety-sensitive positions, which is a position that requires an employee to be responsible for the safety of themselves or others. This includes positions involving the use of machinery, driving and others. Because the law has yet to be defined, it is best for any employer to work with an employment attorney on implementing or enforcing this type of policy.

Q: What happens if an employee shows up to work under the influence of marijuana?

A: Whether legal or not, employers can prohibit employees from coming to work under the influence of drugs when such impairment impacts an employee’s ability to perform the functions of their job or presents a safety risk to themselves or others. Before disciplining or terminating an employee, employers should be prepared to explain their reasons for concluding that an employee was impaired at work with objective evidence. An employer’s observations of an employee’s demeanor, behavior or work performance can be used to support an employer’s reasonable belief of an employee’s impairment. If an employer observes such signs of impairment, they should record their observations in detail in the event that it is later challenged.

Q: Do we have to pay unemployment benefits for an employee who is terminated for using marijuana?

A: Probably.* In most states where marijuana used has been legalized, employees who are terminated for testing positive remain eligible for unemployment. This is because, under state law that governs eligibility for unemployment, an employee’s lawful use of medication would not be considered “misconduct” disqualifying them for benefits. However, if an employee engages in other problematic behaviors (beyond merely testing positive) while under the influence of marijuana, or if they do not have a valid prescription for the marijuana, they may still be disqualified from receiving benefits.

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*It depends on the forthcoming legislation and regulations as well as the circumstances of each case. However, even if the law and circumstances are favorable to the employer, an employer may encounter issues and even litigation regarding these new legal questions that Florida courts have not yet dealt with and plaintiff’s attorneys may be eager to pursue.

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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

About Gunster

Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 11 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, Vero Beach, and its headquarters in West Palm Beach. With over 200 attorneys and 200 committed support staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.

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