“You’re fired.” “Sorry, although we wanted to hire you, your drug test was positive for THC, so we can’t.” “No, you can’t attend our college because you tested positive for marijuana.” But I have a medical card, isn’t it legal?? Unfortunately, we are hearing from patients with these problems every day as clients call us at Minardi Law. This article will explore the current legislation introduced to provide some workplace protections, whether or not the Constitutional Amendment provides any protections for patients, and the current legal challenges resulting from firings and expulsions of students as a result of a positive test for THC.
The passing of the medical marijuana amendment in 2016 has resulted in a great deal of relief for patients, but many headaches as well Members of the Florida legislature have filed bills over the past few years to try to establish protections for patients to no avail. This year, Senator Polsky filed Senate Bill, SB 692, with a companion bill filed by Representative Duran, HB 335, which establishes a cause of action for a patient discriminated against for cannabis use. The language protects “adverse personal action” which means refusal to hire, or employ a qualified patient, mandatory retirement of a qualified patient, or discrimination against a qualified patient with respect to compensation, terms, conditions, or privileges of employment.
The bill provides patient protection in various phases of the employment relationship and provides a right to the employee to sue. It does provide an employer the right to argue an undue hardship in making the accommodation. I do believe it should be expanded to include educational institutions as well. Those considerations include nature, costs, and duration of the accommodation, the overall financial resources of an employer, size of the business and the overall effect on the employer.
The simple solution for most employers is to accept and treat a medical marijuana card as a legal prescription as justification for the positive THC test. Currently, in the situations we have dealt with, an employer or school will not accept a doctor’s certification because it is still illegal under Federal law.
One thing I would change about the legislation introduced is section (3)(c), which states that a medical marijuana prescription is part of the patient’s explanation for the positive test. It should state that it is conclusive justification for the positive test, and not leave room for an employer to argue they can still fire a patient for a positive test. The other amendment I would make is to the testing procedure, in that the patient should provide justification to the testing facility not the employer. A positive aspect of the bill is that it provides attorney fees to the prevailing party. This would likely result in more attorneys being willing to help patients because of the difficulty many patients have in raising the money to retain an attorney to bring the lawsuit. This is consistent with current laws in discrimination lawsuits and would put medical marijuana on the same footing as all other prescribed substances. The bill will clarify the law for patients, but do we really need it and will it help if it is passed?
Article X section 29 of the Florida Constitution gave all residents of Florida the Constitutional right to possess and use marijuana with a doctor’s certification. The Amendment provides two sections that arguably apply to whether or not discrimination against cannabis use should in fact be considered “discrimination” against cannabis use in the eyes of the law. Currently it is not. The Medical Marijuana Amendment, now Article X. section 29 of the Florida Constitution provides that a Qualified Patient is “not subject to criminal or civil liability or sanctions under Florida law.” I believe that the inability to sue for discrimination as a result of being fired or not hired for being a patient, violates this section as it is a sanction against the patient solely for being a medical marijuana patient.
The second section that arguably provides protections for patients is in section (c)(6), which states “[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 a public place.” In two lawsuits, we are arguing that the principle of statutory construction expressio unius est exclusion alterius applies to this section of the amendment; this means that the exclusion of one thing requires the inclusion of the other. This position is similar to the argument made in the People United for Medical Marijuana lawsuit vs the Department of Health which established a patient’s rights to use whole flower. They argued that because the amendment, in the same section that states employers are not required to accommodate on-site use, says “nothing in this section shall require smoking medical marijuana in any public place,” means the constitution requires people be able to smoke marijuana in private. PUFMM won at the trial level and the Governor dropped the lawsuit and that is why we have flower in Florida today. I believe the same should happen in the employment perspective. The Massachusetts Superior Court analyzed language in their laws stating the same provision, not required to accommodate on-site use. The Court applied the expressio unius statutory construction principle and ruled that stating employers were not required to accommodate on-site use means they were required to accommodate off-site use for the employee.
Until we get clarity in the law through potential legislation, this litigation is the only way we can establish a patient’s right to test positive for marijuana and not face termination.
The final question becomes, even if we get the legislature to pass SB 692, will it help Florida patients? Unfortunately, that question, I believe, will still have to be determined by litigation. This is because in the lawsuits we are currently fighting, one versus Hillsborough County and the other versus Nova Southeastern University, the defendants are arguing that because it is federally illegal they do not have to recognize a Florida medical marijuana card and do not have to make any accommodations for medical marijuana patients regardless of state law. Although we have to push for this bill to pass, I believe it too, like every other issue surrounding medical marijuana, will still have to be litigated. This issue has been decided differently in multiple states, and one federal court throughout the country, with most siding for the employees and finding that an employer is not breaking any federal law, not in jeopardy of losing funding, or facing any federal sanctions for allowing patients to use medical marijuana pursuant to state law; only time will tell if the courts of Florida rule the same.
Now is the time to push your legislator to pass this bill so Floridians have a clear path to litigation against employers who discriminate against medical marijuana patients.