New Florida Bill Would Prohibit Discrimination Against Medical Cannabis Patients

A Florida lawmaker has introduced a bill that would protect employees from discrimination in the workplace due to their status as a medical marijuana patient or for the use of cannabis while off the job. The measure was pre-filed in the legislature by Democratic Rep. Tina Polsky of Boca Raton.

“Unless an employer establishes by a preponderance of the evidence that the lawful use of medical marijuana has impaired the employee’s ability to perform the employee’s job responsibilities, it shall be unlawful to take any adverse employment action against an employee who is a qualified registered patient using medical marijuana” in a matter consistent with state law, a draft of the bill reads.

Additionally, employers would be required to give written notice to employees and job applicants who test positive for cannabis use that they have a right to identify themselves as a medical marijuana patient. Employees would be permitted to verify their status as a patient by providing either their medical marijuana identification card or a doctor’s certification as proof of legal use.

“I think this bill is timely and it’s cognizant of the growing number of medical marijuana users in the state of Florida,” Adam Kemper, a Boca Raton employment attorney who specializes in medical marijuana compliance, told local media.

Bill Has Some Exceptions

The bill would not apply to employees in occupations with safety-sensitive job responsibilities, such as heavy-equipment operators, first responders, day care and health care workers, and those who drive, carry a firearm, or handle hazardous materials.

The bill does not give employees the right to use cannabis while on the job. Employees whose work performance is adversely affected by their use of medical marijuana would also not be protected by the measure.

“If you’re impaired to the point that it’s affecting your job, the employer can discharge you for that,” noted Kemper.

In an online notice calling for support for the measure, the National Organization for the Reform of Marijuana Laws said that passage of the bill would give medicinal cannabis patients the same rights as those who choose to use other doctor-recommended therapies.

“Those who consume conventional medications legally and responsibly while off the job do not suffer sanctions from their employers unless their work performance is adversely affected,” the activist group wrote. “Employers should treat those patients who consume cannabis legally while away from the workplace in a similar manner.”

Ben Pollara, a Miami campaign consultant and activist who headed a group that campaigned for passage of the ballot measure that legalized medical marijuana in Florida, said that the amendment did not include any employment protections for patients. The new bill is needed, he says, because without it, litigation is almost never decided in the favor of patients.

“It’s an unfortunate feature of the medical marijuana laws in 31 states,” Pollara said last year. “Every ruling I’ve ever seen has been favorable to employers on this.”

Florida’s medical marijuana program was authorized with the passage of a constitutional amendment by state voters in 2016.