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Can I Use Medical Marijuana at Work in Florida?

While Florida law permits the use of medical marijuana, Senate Bill 8A expressly states:

This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination. Marijuana, as defined in this section, is not reimbursable under chapter 440.

A number of patients have turned to the Americans with Disabilities Act (ADA) for recourse; however, marijuana’s federal prohibition currently presents a number of challenges.

The Americans With Disabilities Act & Medical Marijuana

As Florida law firm Wenzel Fenton Cabassa notes, courts in multiple states have “uniformly concluded” that the ADA does not protect someone using a federally prohibited drug. Since marijuana is still classified as a Schedule I substance (along with heroin, LSD, and ecstasy), it unfortunately falls under this category. However, a recent case provides hope:

In 2017, a former UPS sales director alleged that UPS terminated his employment in violation of the ADA and the Arizona Medical Marijuana Act (AMMA). The case, Terry v. United Parcel Services, Inc., claims that Terry used legally obtained medical marijuana, under the direction of his doctor, during non-work hours to treat chronic pain.

Terry claims that he never possessed, used, or was impaired by marijuana while on UPS property or during working hours. In April 2017, UPS required Terry to report immediately for a drug test; one week later, the company terminated his employment due to positive drug screening results.

Terry argues that he’s a disabled individual within the meaning of the ADA and that UPS failed to offer him any reasonable accommodation for his disabilities. While lawyers with Seyfarth Shaw call the case an “uphill battle”, they say the verdict is one to watch – in the wake of rapidly evolving case law, one trial could change the tide.

The Florida Bar Journal acknowledges:

[Florida law] is silent as to whether employers must accommodate off-site use of marijuana.

As it currently stands, “off hours” claims like Terry’s might just be the key to unlocking larger ADA discussions.

Employee advice

Florida lawyers advise employees to have a clear understanding of their employer’s drug screening policy prior to starting employment. Until then, patients are encouraged to monitor pivotal cases (see: The Florida Bar Journal) and maintain an open line of communication with their employer.

One interesting point to keep in mind:

According to the Bureau of Labor Statistics, the number of Florida’s non-farming job openings has increased over 1% since February of this year. Conversely, Florida’s labor force has only increased by 0.1% which means that there is a major gap continuing to grow between the number of jobs available and the number of people who are able to work them.

Due to this looming labor scarcity issue, many employers in the state of Florida are realizing that they cannot afford to implement policies that discriminate against medical marijuana card-holders. By doing so, these employers are shooting themselves in the foot, so to speak, by eliminating much needed labor assets.

Although the battle for patient protection in the workplace is still ongoing, the silver lining for medical marijuana card-holders who are worried about whether or not they could be fired for failing a drug test, is the sheer fact that many employers have more of an incentive to keep them than to fire them simply because there are not enough skilled workers to go around.

Legislative Updates

For updates on current state and federal legislation, see: Medical Marijuana: Employee Rights & Safety.

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6 Comments

  1. While I am still getting familiar with the current state and federal restrictions as it pertains to medical marijuana, i know what it feels like for a company you’re dedicated to to let you go for reasons you can’t understand. I myself was let go from a job I performed due to “my position being eliminated.” They didn’t even offer me another position . That’s how these companies have figured out how to get rid of those of use suffering with disabilities. We are simply “eliminated.” So, you’re either going to try and sue them and attempt to prove what they did was discriminatory probably blacklisting yourself to other potential opportunities within networking/hiring categories or just let it go and take it and get out there and try like heck to find another job to start all over at. I worked for this company for 15 years and after 2 years I was forced to make the decision and file for FMLA. This was actually recommended by my former superior as protection- apparently he may have known something I didn’t- where I made sure to provide ALL required FMLA documentation required by my physicians, etc. yet, they were still able to let me go. If a company wants you out, they know how to work the system to their benefit. What still hurts me personally is I still can’t figure out why. I was a really hard worker. I found out later from a contact within another dept that they were running reports on my key card, which was apparently an attempt at termination. I wish I could have seen they’re reaction when they realized hat as a salaried employee I was coming in early and leaving lay everyday. I worked at least 65 hour weeks, yet they STILL wanted me gone. Yes, I could have easily claimed long term disability, but I fought through my physical limitations to continue to do my job and keep up my responsibilities. I kept my honor and loyalty to this company to make sure they never fell short of what they needed from me. I truly never saw it coming.

    While that’s in the past, it still makes me wonder, why? Unfortunately, this situation does prove that human beings with disabilities are STILL discriminated against. It’s situations like this that make us suffer in silence. I am stronger for it, but I won’t let it change my will to stay loyal and hardworking to those that I report to and work with. I know there are more positive things happening for us. I just pray that one day this world will get to the point where human beings with disabilities are judged on their skills and outstanding abilities, and even for what they fight through everyday and not for things they cannot help in spite of their strengths.

    Wishing you all positivity and happiness!
    S

    1. Thank you so much for sharing your story. We’re so incredibly sorry to hear about your experience, and hope your health and career prospects will continue to improve. Please know that if you’re ever in Florida, you have a strong support system of compassionate care advocates! Wishing you positivity and happiness, as well!

  2. Going to CannaMD was the best thing to happen to me, I appreciate everything you have done for me, Thanks again!

  3. Give me a break. Alcohol after hours is 10x worse than marijuana. They claim the day after consuming alcohol, your reaction times are 50% times less efficient than use of marjuana. On top of that the health risks are 100x use of marijuana. I don’t use marijuana but I can read and have several degrees.

  4. My HOA told me i can’t smoke in my carport. I should have the right to smoke on my own property, right?

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