By Michael J. Liss, Esq.
Marijuana remains illegal under federal law. While Florida has a medical marijuana program, under our system of law, federal law controls on any issue addressed by federal law, when it conflicts with a state law. Therefore, our medical marijuana remains illegal. In Florida’s medical marijuana statute (§381.986) there are specific references to cannabis and the workplace which affect the rights of employers and workers. They are consistent with Federal law. The following discusses some realities and trends regarding cannabis in the workplace.
Drug testing: The Florida statute governing our medical program specifically allows employers to maintain drug-free workplaces (workers compensation plans which have certain drug-testing obligations in exchange for reduced insurance premiums) and specifically states that employers can’t be sued for wrongful discharge or discrimination for firing employees for cannabis use. This means that employers can drug test as a condition of hiring, continued employment or upon suspicion of impairment at work. With at-will employment, unless prevented by a policy manual or other contract, an employer can request a drug test of an employee suspected of impairment in the workplace and fire upon a positive test.
Hiring: Since a drug test can be a condition of employment and Florida’s marijuana statute does not create any claim for discrimination, then hiring can be conditioned upon an agreement to not use cannabis. A test may be given as a condition of hire, and should a prospective employee state that they use cannabis and will not stop and be subject to testing, the employer can choose not to hire an otherwise qualified applicant.
Workers Compensation: Because of workers compensation insurance policies, virtually all workers injured on the job are subjected to a drug test before benefits are approved, including medical bills. Whether the employee who tests positive is fired for testing positive or is simply denied benefits is likely a function of whether the employer maintains a drug-free workplace. Employers which have adopted drug-free work places will typically terminate a worker who is injured on the job and tests positive.
Why does any employer care? Consider that the National Institute on Drug Abuse reported the findings of a study which stated that those employees who tested positive for marijuana had 55% more industrial accidents, 85% more injuries and 75% greater absenteeism compared to those who tested negative.
The reality: In Florida, we don’t have a strong industrial sector, as compared to many other states. In Florida, workers compensation insurance premiums are based on the danger categorization of a job. All jobs are ranked. It makes sense that jobs which have physical danger within their job descriptions (FP&L line worker, heavy equipment operator, etc.) cost more to insure. Those employers have drug-free workplace programs which depend on drug-testing and will continue to do so.
Underlying reality: THC tests are not tests of impairment, and unlike alcohol, there is no presumptive impairment level for THC. Just because there’s a positive test does not mean an individual is high when tested, or was in the first place.
Another reality is the labor market. Until COVID-19, there was a healthy labor marketplace. Many employers were finding good help hard to find. Many great candidates for a lot of jobs use cannabis. At least 24 million Americans identify as cannabis users. Despite paying somewhat more for workers compensation insurance by not having a drug-free workplace policy, some may choose to not maintain such a workplace. Many companies hiring and retaining employees in jobs which are not inherently dangerous either don’t test for THC, offer counseling upon a positive THC result or ignore a positive result. This, even when automatically terminating upon positive results for other drugs. In a tight labor market, employers have to accommodate qualified workers to hire and maintain quality candidates.
Future Trend: Employers can decline to hire employees because they use cannabis, they can fire them because they use cannabis, they can deny workers comp benefits-Florida and U.S. law say so. Will they discriminate? That seems to be a function of the labor market.
My assumption is that the future includes scientists studying and creating true impairment testing, adaptable to specific industries, and that, in most industries, employers will move from detection testing to impairment testing. Truck drivers and heavy equipment operators will likely always be subject to zero tolerance policies. But, surely for IT developers, retail workers, office workers and others, the only question for employers will be whether they are accepting of having an employee affected by cannabis while working. With residents of 2/3 of the states having access to legal cannabis, for employers to hire and retain top talent, only impairment on the job will matter, as they will not be able to compete for hires with a zero tolerance policy while impairment testing is available.
Michael Liss, Esq. can be reached at firstname.lastname@example.org or (561) 981-2507, located in Boca Raton.