In this past election cycle, Floridians voted to approve Amendment 2 by a landslide, officially amending the State Constitution to allow the medicinal use of marijuana by those with “debilitating conditions,” free from criminal or civil liability under Florida law. The amendment went into effect on January 3, but questions remain as to exactly how this amendment affects the rights of employers and employees under the Americans with Disabilities Act (ADA).
Who can use medicinal marijuana under Amendment 2?
Amendment 2 provides for legal medicinal use of cannabis under Florida law by “qualified users,” or those with “debilitating conditions.” “Debilitating conditions” have been defined as:
- Post-traumatic stress disorder (PTSD);
- Crohn’s disease;
- Parkinson’s disease;
- Multiple sclerosis; and
- Other debilitating medical conditions “of the same kind or class or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for the patient.”
It remains to be seen how the potential vagueness in the definition of “other debilitating medical conditions” will play out in proposed state rules and regulations and in the courts. Under draft administrative rules recently proposed by the Florida Department of Health, the Florida Board of Medicine will have the final say as to what other conditions may qualify for use of medical marijuana.
Does the ADA mandate accommodations for the use of medical marijuana?
No. Title I of the ADA prohibits employers with 15 or more employees from discriminating against disabled employees and the case law suggests an employer may be required to provide reasonable accommodation for disabled employees that need to take medication during their shift. However, there is a carve-out in the ADA for the use of ”illegal drugs,” which is defined by the federal Controlled Substances Act (CSA). As marijuana is still currently illegal under the CSA, the ADA does not require an accommodation be made for the use of medical marijuana.
Does Amendment 2 require employers to make accommodations for employees’ use of medical marijuana?
We currently don’t know with certainty, but we may be able to make a good prediction. Amendment 2 expressly provides that “[n]othing in this section shall require any accommodation of any on-site medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place.” The language is clear in that no accommodation must be made whatsoever for employees to use medical marijuana while on the job. However, Amendment 2 remains silent as to any accommodations to be made for off-site use, and the Amendment is too new for the Florida courts to have weighed in on this point.
The wording of Florida’s Amendment 2 mirrors that of the State of Washington, though, which is also silent as to accommodations for off-site use. In Washington, the courts have declined to interpret their law’s silence as a mandate that accommodations are to be made for off-site use of medicinal marijuana. Given Florida’s relatively conservative jurisprudence, it seems likely that Florida courts will likely adopt a similar interpretation.
Moreover, Amendment 2 further provides that “[n]othing in this section shall permit the operation of any vehicle, aircraft, train or boat while under the influence of marijuana.” This language would support an employer’s denial of any accommodation for off-site use of medical marijuana by an employee required to operate vehicles or heavy machinery.
What developments in the law do Florida employers need to look out for?
The Florida Department of Health has been tasked with promulgating final administrative rules for Amendment 2 by July 2017. The Florida Legislature is also moving forward with bills delineating a regulatory scheme for Amendment 2 in this legislative session. These rules and laws, when enacted, may offer employers further guidance.
Florida employers seeking assistance in the development of ADA policies in light of the passing of Amendment 2 or those with accommodation questions should contact attorneys in FMG’s Tampa office.