By Dustin Robinson, Esq. CPA
The Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against qualified individuals on the basis of disability, which is defined to include a broad array of impaired conditions. Under the ADA, the employer must provide reasonable accommodations to the disabled employee so that the employee can perform essential duties of the job. Similarly, the State of Florida prohibits disability discrimination pursuant to Section 760.10, Florida Statutes. Thus, employer disability discrimination in Florida is prohibited from a federal and state perspective.
For medical marijuana use, the Florida Constitution and Florida Statute carve out a limited exception to these employee protections. The Florida Constitution specifies that employers do not need to provide accommodations for “on-site” medical marijuana use. Art. X. § 29 Fla. Const. Similarly, the Florida statute specifies that employers are not required to provide accommodations for medical use of marijuana “in any workplace or any employee working while under the influence of marijuana.” Fla. Stat. § 381.986. Under this authority, employers throughout the state are discriminating against medical marijuana cardholders for testing positive for THC. But, in my legal opinion, testing positive for THC cannot be the sole basis for taking an adverse action against a medical marijuana cardholder in Florida.
While a Florida court has not had the opportunity to interpret the above medical marijuana exception in the Florida Constitution and Florida Statutes, several courts in other states have interpreted similar provisions in favor of the employee:
• In Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456 (2017), the Massachusetts court ruled in favor of the employee and held that because the state law specifically allowed employers to prohibit on-site marijuana use, it “implicitly recognizes” that allowing off-site medical marijuana use would be a permissible accommodation.
• In Callaghan v. Darlington Fabrics Corp., et al.,No. PC-2014-5680 (R.I. Super. Ct., May 23, 2017), the Rhode Island court ruled in favor of the employee and held that the employer was required to accommodate off-site use even though the state statute provided that an employer is not required to “accommodate the medical use of marijuana in any workplace.”
The basis for these decisions is simple: by explicitly permitting employers to prohibit on-site marijuana use, the legislature was impliedly prohibiting employers from prohibiting off-site marijuana use. Although these court cases are not binding on the Florida court, these cases should be persuasive authority to a Florida court. Indeed, the Florida courts have repeatedly adopted the rule of statutory construction that the expression of one thing is the exclusion of the other. See e.g., Headley v. City of Miami, 215 So.3d 1, 9 (Fla. 2017); Young v. Progressive Southeastern Ins. Co., 753 So. 2d 80, 85 (Fla. 2000).
If the Florida court accepts the interpretation that an employer cannot discriminate against off-site use of medical marijuana, then an employer would not be able take an adverse action against an employee for merely testing positive for THC. Instead, the employer would need additional evidence that the employee was actually impaired while on-site. Arizona, for example, explicitly accounts for this in its statute by providing that “a registered qualifying patient shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment.” See A.R.S. §36-2814(A)(3). While the Florida statute does not contain such language, it is likely that a Florida court can draw a similar conclusion based on the implied prohibition on employers prohibiting off-site use.
One additional wrinkle to this analysis results from the recent legalization of hemp federally and in Florida statutes. Hemp is defined as having no more than .3% THC. THC is no longer a Schedule I drug as long as it is derived from hemp. This begs the question: Will a Medical Review Officer be able to conclude whether a positive THC test is derived from the use of legal hemp or federally-illegal marijuana? If not, then even employee’s without medical marijuana cards may have some protections from positive THC tests. Time will tell how Florida courts will rule on this issue.