Medical marijuana may be legal, but are public employees protected if they get high?

Uniting States of Marijuana: the country’s evolving laws on cannabis

Results from the 2016 election brought about new rules on the use of recreational and medicinal marijuana in several states, with more than half now allowing for the latter.
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Results from the 2016 election brought about new rules on the use of recreational and medicinal marijuana in several states, with more than half now allowing for the latter.

You would think with the legalization of medical marijuana in Florida that cannabis could be treated like any other legally issued drug when it comes to personnel policies.

Except medical marijuana is not legally a prescription. It is simply a medical recommendation so the question lingers: Are employees protected with the same rights as having a prescribed drug if they test positive for marijuana.

The answer is convoluted, at best.

“It is uncharted territory,” said Anne Chapman, an attorney with Blalock Walters and a member of Palmetto’s personnel policy committee. “It is a changing landscape.”

While there have been whispers from Washington that Congress may soon address the legality of medical marijuana, it remains illegal from a federal standpoint. Medical doctors cannot legally “prescribe” medical marijuana, but they can recommend it as a benefit to their patients.

It’s a legal loophole that has allowed states to move forward in legalizing medical marijuana and the legal distinction between prescription and recommendation presents significant challenges. In some states, such as Massachusetts, the legislature took a stance and made it illegal for a medical marijuana patient to be fired if they tested positive.

Others, including Florida, have taken no such stance one way or the other. The Florida Legislature took two years just to roll out what they believed was the intent of the voters who overwhelmingly passed Amendment 2 in the 2016 general election. Smoking medical marijuana only just became legal in March, after the Legislature and Gov. Ron DeSantis overturned a ban enacted by former governor Rick Scott in 2017.

At the end of the day, medical marijuana users are vulnerable to employer policies, particularly when the employer is designated as Florida Drug Free Workplace — such as local government workplaces — which protects the employer under statutes that note marijuana use, medical or otherwise, is not permitted.

Gov. DeSantis announced that he tasked the Legislature with changing the law to allow smoking medical marijuana. If it doesn’t by mid-March, he’ll drop the state’s appeal of a court decision that says banning it violates a constitutional amendment.

Employers across Florida are handling the medical marijuana dilemma very differently. Some private employers are opting to not even test for cannabis in pre-employment drug testing. Others take a stand on zero-tolerance policies, which again, leaves the medical marijuana patient in a conundrum.

Chapman said Palmetto has several options, “Because it’s not legal under federal law, so we could still say we don’t care and you will be terminated. But we want to be more fair than that because let’s say an employee uses medical marijuana on the weekend and has an accident on Monday. There is no connection between the marijuana in their system and the accident.”

Jim Freeman, city clerk, said the personnel committee believes the city should treat it like any other prescription drug in that it is up to the employee to communicate with their supervisor that they are currently under the influence of the drug, just like if they were currently taking pain medications.

Chapman said there is no current notification system in place because the employee is protected and doesn’t have to disclose what and why he or she may be taking the drugs. Any questions that could reveal why the employee needs those drugs would be a violation of federal and state laws.

“You can’t ask employees about prescriptions they are taking,” Chapman said. “You can’t make assumptions about their abilities, so it would not just come up with medical marijuana, but any prescription drug context. So, it’s important for supervisors to watch the situation and an employee can be called in for a drug test under the city’s policies relating to reasonable suspicion.”

It’s an after-the-fact solution that doesn’t sit well with Commissioner Tambra Varnadore.

“If they don’t have a recommendation, then they would probably be fired, if they do, then it was poor judgment on their part for not telling a supervisor and we should have been notified,” Varnadore said. “We still have the liability. If they are in an accident, we will pay the price. It’s problematic and I don’t know how to fix it.”

Learn about the brain reward system and the biochemical processes that occur during marijuana use.

Because medical marijuana is recommended and not prescribed, the city has leeway to outright ask employees about medical marijuana use, but Chapman advises against it.

“Someone could say well you learned of their underlying medical conditions,” she said. “They don’t have to tell us why or what drugs they are taking, but the employee does have to tell their supervisor that they can’t perform the function of their job.”

The Florida League of Cities is recognizing the difficulties municipalities are facing and has been doing seminars with local governments in how to address those challenges. Palmetto will host one of those seminars at the end of the month and officials with varying opinions on Monday agreed to hold off on any decisions until then.

City attorney Mark Barnebey cautioned against adopting policies deemed too restrictive.

“The challenge is the more you restrict it, the more chance you catch someone in the peripheral,” Barnebey said. “Accidents happen and can happen whether someone is on drugs or not and you have the same financial impact on the city. Your chances with a very strict rule could end up terminating folks that the drugs had no real impact on what they were doing.”

If drugs are detected in a drug test, the testers will validate an employee’s prescription and mark the substance as coming back negative, which also makes it difficult to outright say the drug in question caused an incident.

There are some lingering questions as to how that relates to “recommended” medical marijuana use and the policies in place for drug testing laboratories. The choices in how to deal with all of those issues will have to be addressed at some point.

“It’s out there and it’s on the rise,” said Mayor Shirley Groover Bryant. “It’s moving forward and we have to get ready for it, while being aware of the issues that impact our citizens and our employees. We are like any other business in Manatee County so we need to be prepared for what’s coming in the future.”

Palmetto is the first of the local municipalities to make an attempt at addressing medical marijuana use in their personnel policies.

Breaking News/Real Time Reporter Mark Young began his career in 1996 and has been with the Bradenton Herald since 2014. He has won more than a dozen awards over the years, including the coveted Lucy Morgan Award for In-Depth Reporting from the Florida Press Club and for beat reporting from the Society for Professional Journalists to name a few. His reporting experience is as diverse as the communities he covers.
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