Employment Workplace Protection & Tourist Reciprocity Bills Heading to The Florida Legislature

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HIGHLIFE Magazine - Takes on the Florida Legistlature - January 2020

Reciprocity could generate over 72 million in revenue for Florida

Gary J Stein
Gary J Stein – Clarity PAC

Employment Workplace Protection For Floridians

Michael M. had Crohn’s disease. At its peak, he had lost 50 pounds from his usual 145, had portions of his intestines removed and was placed in hospice. His wife, who frowned on cannabis use, had asked him years ago to give up smoking weed because she worried that it would affect his job as a heavy machinery driver in the construction industry.

But he was clearly dying, and she had read clinical reports that showed people having significant improvement in Crohn’s cases. So, she met with his old supplier, since these were the days before medical cannabis was legal in Florida, before the voters passed Amendment 2 and got him the medicine that she hoped would save his life.

She brought him cigarettes that she carefully emptied of their tobacco and substituted ground cannabis and brought them to the hospice and had him partake in the outside garden area. 

His appetite increased immediately, and the inflammation in his remaining intestines died down. He began to gain weight. As he improved, he switched from smoking to taking capsules of cannabis oil. After less than a month, he was released from hospice and sent to a rehab center, then to outpatient treatment. In a matter of months, he was back to 1450 pounds, feeling stronger and ready for work.

“I was done being a burden to my family and was ready to work again,” he told me. He called up his old boss and told him he was ready to return to work. He didn’t tell his old boss what his “miracle cure” was, but he knew that he may have to eventually tell him, since it was company policy to randomly drug test employees, even though they rarely did them, unless the employee showed signs of impairment. 

So, he kept his secret from his employer. His work evaluations showed excellent work habits. He always came to work on time, always put in a full day, and never had any accidents. 

When Amendment 2 passed, he got his Medical Card, but kept it at home, worried that someone may see it. But he was back to work, making a decent salary, paying taxes and getting health benefits again. But the fear of testing positive for THC was and still is weighing heavily on his mind.

His coworker who had back injuries came to work on pain killers – opioids, with the full acknowledgement of his employers. Others came to work hung over from drinking the night before, and sometimes had a beer or tow at lunch, with no blow-back. But he knew that his situation was different, and he had to be vigilant.

Now that 40 states have medical cannabis laws and 10 have responsible Adult Use, the topic of cannabis use and workplace law has been brought up more often. Many businesses have drug-free workplace policies, but testing has become an issue, because heavy users can test positive for weeks after use and even weekend users can test positive days later, even if they come to work completely sober, and totally unimpaired.

Many people in medical and legal use states use cannabis during off-duty hours. Many, like Mike, have lives that depend on their off-duty use. Paul Armentano, from NORML, noted, “Most of these people use cannabis responsibly and hold jobs and go to work like everyone else.”

Many companies have even found that barring people from getting employment, due to a positive THC test of blood, hair or urine, affected their ability to get employees. Last year, Caesars Entertainment, based in Las Vegas, Nevada, stopped marijuana screening for prospective employees. “We believed we were losing too many otherwise qualified candidates,” says Richard Broome, the company’s executive vice president of communications and government relations. “We still screen for marijuana if we have reason to believe an employee is under the influence at work.”

And that makes perfect sense. People should be judged by their performance, not their use of cannabis during off-duty hours. The courts have weighed in on this, as well. In 2017 case (Barbuto v. Advantage Sales), the Massachusetts Supreme Judicial Court said a registered medical marijuana patient could sue her employer for disability discrimination after being fired for a positive marijuana test. The court determined that employers must explore reasonable accommodations if an employee is registered for medical marijuana use to treat a condition that’s covered under the state’s anti-discrimination law.

According to the National Council of State legislators, “When it comes to off-duty medical marijuana use, the states are divided. About a dozen states prohibit employers from discriminating against medical marijuana cardholders or from firing employees for testing positive for marijuana due to off-duty use. Some of these states also require employers to reasonably accommodate an employee who needs medical marijuana to treat a medical condition—for example, by allowing an employee to start work later in the morning because she uses medical marijuana at night to treat glaucoma. Several other states, on the other hand, explicitly allow employers to fire employees for off-duty medical marijuana use. And some states don’t clearly address the issue—but courts in several of these states have sided with the employer, holding that employers can fire employees for off-duty use of medical marijuana.

Where does Florida stand? As of December of 2019, Fla. Stat. Ann. § 381.986 notes: Employers are not required to accommodate the use of medical marijuana in the workplace or allow an employee to work under the influence of marijuana. For an employer that has federal contracts, or one that has positions deemed safety-related, such as truck drivers, first responders, airline workers, drug testing can be mandatory, and those with Drug-free workplace policies can fire an employee, just for having a medical cannabis card.

But that is about to change. Bills filed in the House and Senate, HB595 and SB962 address the issue for the first time. Last year, an amendment that would protect employees was filed on the bill that allowed whole flower use, but withdrawn to assure the bills passage, which was mandated by the governor. But this year, the state legislature will try to join the dozen other states that now have employee protection laws. They include accommodations for people who need to use cannabis for debilitating conditions, like Mikes, but still have exceptions for safety-related positions, like transportation of hazardous materials.

There is be arguments on both sides. Reports from the Rand corporation, which note that cannabis users may have higher rates on absenteeism and workplace accidents, but don’t verify that correlation is the same as causation. For some, it is the debilitating disease that causes the absenteeism, and the lack of access to proper dosage has blocked treatment.

The there is the issue of First Responders – Police, Fire and EMS workers, who have much higher rates of PTSD from exposure to traumatic situations on their jobs. In the Tampa bay area, there were three tragedies in a three-month period. A decorated police officer, who came back to work as resource officer after the Parkland shooting demanding greater police presence, took his own life after killing members of his family, and firefighter and an EMS worker with years of service and histories of PTSD committed suicide. The current programs of meditation, therapy and other attempts did not work, but sheriffs and fire chiefs and supervisors are reticent against cannabis use during off-duty (and times when not “on call”) hours, despite research which has shown great promise in treating severe PTSD. Even the VA is now changing policy to allow cannabis therapy, even though workplace policy make block its use.

These bills will allow employers to gain and retain good employees, and employees whose lives and quality of life were regained through cannabis use, will be able to return to work or gain new employment and support their families and lead productive lives, once these bills hopefully pass.

Tourist Reciprocity to protect Florida’s Visitors

The term reciprocity wasn’t one that very many people outside of lawyers and police used until folks watching the evolution of cannabis laws started using it. Before that time, it normally meant adhering to the golden rule – “do onto others as others would do onto you.” But in the law, it has a deeper meaning – “a recognition by one of two countries or institutions of the validity of licenses or privileges granted by the other.” In this case, in a world where cannabis is federally illegal, but states have a crazy quilt of individual laws, it means that you can use a medical card from your state to purchase and possess cannabis in another medically legal state.

 But not all states have medical cannabis reciprocity. In Florida, reciprocity currently only applies to part-time residents who live at least 4 months in the Sunshine state. Prior to the passage of SB8A, even they could not purchase medical cannabis in Florida, and after SB8a, because the application for a medical card required a Social Security card, our Canadian neighbors who stayed here for part of the year were excluded as well.

The results of a lack of reciprocity could be fatal. A woman from Michigan who has breast cancer that was being successfully treated went to visit her daughter in the Chicago area only to have her life-saving medicine thrown out when she went into Cook County hospital for treatment of a long-standing ulcer that had ruptured from the standard cancer treatment she was taking, and her tumors, which had been reduced from 2 ½ centimeters down to a ¼ centimeter, metastasized and she passed away in a few weeks, as chemotherapy hastened her demise. That was my mother.

Several states have reciprocity laws that allow visitors to purchase, possess and use medical cannabis. Arizona and New Hampshire have a peculiar law that allow visiting patients to use medical marijuana (with a state-approved card); however, non-residents are not permitted to purchase cannabis from a dispensary.

States with legal Responsible Adult Use allow purchase and use, but due to the federally illegal status, you still cannot travel across the state border with your purchase. Does that mean that there are DEA officials waiting to grab those that dare try? Attorney Allison Malsbury has noted,” From a legal perspective, it’s very cut and dried. In practice, however, it’s very ambiguous. In practice, the chances of feds or the DEA sitting at the border waiting to catch someone – that’s just not happening. It’s not practical or worth their time.” But, Americans for Safe Access have stated, “The best law enforcement encounter is the encounter that never occurs.”

But, of the 120 Million tourists that come to Florida each year, many who have family members in their party with debilitation conditions like Cancer, MS, ALS and others often take their chances crossing into Florida by car with their medicine stowed away or take a chance with the TSA at the airport to have the chance to take a vacation and enjoy the warmth and sunshine. That includes kids from Make a Wish foundation who have been given a chance to go to Disney World, who has strong policies against cannabis use on the Disney property.

This is a great loss to the tourist and to Florida. If only 6 percent (the average amount of people who are medical users in medically legal states) it would be a huge boon to the dispensaries here. And those who forgo a Florida vacation because grandma has cancer and is using cannabis to treat it but is afraid of coming to our state on vacation and leaving on probation? That is Florida’s loss in revenue as well.

Last year, two bills were filed, House Bill 557 / Senate Bill 1238, but never got into committee. This year, for the third year in a row, I attempting to file a Tourist reciprocity bill that asks our visitors to pay a one-time $10 reciprocity fee, that would allow those with legitimate medical cards from other states to make a one-time purchase at one of Florida’s MMTC’s, for enough product to cover their time here. Such a bill could generate $70M, enough to fund VISIT Florida, the state tourist advertising program, and protect our ill and treated visitors from arrest.

Its time for our nations vacation capitol to welcome medical cannabis users from other states just as they welcome the rest of the world to visit and enjoy our Sunshine State.

It was only the half-way point for the 2019 Florida legislative session, but the wheel of fortune had been spun and the Florida medical cannabis program was wobbling in and out of control.

No one really knew what to expect when the executive branch changed hands from the prohibitive stance taken by the Rick Scott administration and wild card position of the new governor, Ron deSantis.

During the election, DeSantis was the anti-cannabis candidate, with a non-committal stance on medical use and a steadfast rejection of Responsible Adult Use.  His deferring stance on the 2 issues earned him a “C” rating from NORML on their governors’ grades list. It was a major upgrade from the “F” given to Rick Scott, who asked for appeals on every lawsuit won that increased licenses or allowed Home Grow and Smoking. 

But things looked rosier in January, when the new Governor had a press conference with Cong. Matt Gaetz and Amendment 2 financier John Morgan and stated that he would withdraw those appeals and stop the pushback on the Medical Cannabis program. The first to go would be the smoking ban and set up a March 15 deadline for the legislature to create and pass a bill to legislate smokable cannabis, or he would pull the appeal and let the court solve the issue.

The legislature took to the task and Sen. Jeff Brandes, along with Rep. Ray Rodrigues worked to have SB182, which removed the ban and set up rules in place for doctor recommendations and sales. The rules were very restrictive, but the bill passed by March 15, was signed by the Governor on the 18th, and within a week, variances to sell flower from the MMTC’s were being approved and whole flower hit the shelves in sealed jars instead of ground flower in sealed ceramic cartridges for vaping.

There were more bills that were proposed, covering everything from banking to tourist reciprocity, but they were put aside to get the smoking bill passed as the first signed legislation of the session. In the meantime, once all the subcommittees had met, with none of the cannabis bills other than hemp bills having been put on an agenda, those bills died for the 2019 session.

However, we were told that the Health and Human Services committee was going to put together a Proposed Committee bill that would be centered on licensing and could be a platform for the other bills to get a second chance as amendments to that bill.

But that was not how it all turned out. 

Once the smoking bill was signed into law, doctors across the state started giving out smoking recommendations and stores started filling them. The House committee on Health and Human relations set out to break what had just been fixed. The same folks who wrote the bill that the 2nd district court deemed unconstitutional because it set restrictions not specified in the amendment, did it again. 

This time, they did it in the form of a bill that, at it’s core, set a THC cap at 10% for all smokable flower sold. It also set an edibles cap at 200mgTHC/day and set up a rule that would prevent any person under the age of 18 from getting anything higher than .03% THC, and all recommendations for minors required a second doctor to sign off that was a certified pediatrician.

The basis for the THC cap was an article in Lancet that was based on an observational study of 900 individuals in Europe that had a first incidence of psychosis and 1 in 5 had used THC in the last year. For the educated in reviewing studies like this one, it did not rise to the level of proving causation. The article even admitted that fact and noted that it could not even prove how THC may have possibly caused those psychosis. There were several other problems, including the fact that the ailments noted were differing types of psychosis, all lumped together like they were a homogenous group, which they weren’t.

During discussion and debate on the bill, Rep. Rodrigues even brought up laws in Amsterdam, a country which has a far broader drug policy than any city in the country and had legalized Adult Use for anyone, including tourists. But those fine points were lost on the committee. They also did not take heed over things that were brought up in testimony, including the fact that decreasing THC levels would force patients requiring higher THC intake to inhale  much more burnt hydrocarbons as smoke(the original objection for allowing smoking), and double to triple the price when they had to buy a higher quantity at the same price/gram.

More many patients, this bill will most likely force them to purchase their medicine on the black market to get the proper THC level and reduce the cost, putting them at risk with untested product from a spurious source. It would also reduce the amount of product sold by the MMTC.s reducing the license valuation as it reduces sales of flower, which was slated to be almost 45% of all sales.

This is a lose-lose-lose for patients and MMJ medical clinics, as well as the MMTC’s, who would have to destroy current stock of whole flower and force them to find a way to produce flower with a THC level of less than 10%, which is difficult in a plant which is subject to genetic drift based on climate and other factors. GMO’s may have to be developed.

But it will be a big boon for the Black Market, allowing them to sell more on the street, and recommend other drugs they may want to sell, as well, including opioids.

The bill was slated to head to the Appropriations committee as HR7117, and, if not amended to remove the cap, would break the program they had just fixed and fly in the face of the new governor’s mandate, and once again, the will of the voters.

The bill went to the appropriations committee with Three amendments. The first, from chair Rodrigues, gave the OMMU $350K in non-recurring funds to implement the act. The other two, from Rep. Carlos Guillermo Smith, failed to be adopted. One would have allowed opioid addiction to be a qualifying condition. The other would have dropped the 10% THC cap. There was very compassionate testimony on behalf of both amendments, but the amendments failed on a voice vote. No hand or head vote was called, and the billed was moved to the House floor on a vote along party lines of 19 yeas, 7 nays. On April 12, the bill headed to the house floor, still awaiting a senate companion.

It may be waiting a very long time. With only 2 weeks left of session and the budget still left to knock out and many bill still on the calendar, the senate indicated they were not interested in working on that companion bill, which would be unpopular at best.

There was on path considered. A “T21” bill or Tobacco-21 Bill, which raised the legal age to purchase tobacco, had added a piece (in the house version, HB7119) that increased the age for a “smoking” medical cannabis recommendation to 21. The senate version (SB1618) didn’t have that addition, but it could have been amended to match and then the house version merged with 7117. But, as of this writing, the word from the senate was that the senate didn’t have the enthusiasm to go out of their way to move toward moving in that direction. In part, because the governor had already noted that he did not like the cap and would consider putting a veto on the bill if it got to his desk.

So the house bill, 7117, may well sit on the table in the house until the end of session and die there, along with the rest of the cannabis bills that were filed this session that never got a hearing, including the banking bill, decriminalization, legalization, patient protection, employee protection, tourist reciprocity, free medical cards for vets, school use, license reforms(breaking the vertical integrations) and retail units. Those were all things that were supposed to be attached to the “Pot luck bill” that never arrived, replaced by the THC cap bill.

The hemp bills DID move forward, in various forms, including the bill to allow extract sales, the one to reschedule hemp extract for epidiolex, and the one to let the Department of Agriculture write the rules for the new hemp industry. In addition, Department of Health and the Department of Business and Professional Regulation, SB1020 helped administer the state hemp program. The rules included sampling and testing measures and nonrefundable fees for administering the program. 

It wasn’t everything we wanted. Not even close. But any step forward without one back is a good day in Florida.