Lawmakers seek to protect public employees who use medical marijuana from retaliation

Sen. Tina Polsky, and Rep. Nick Duran are bringing back legislation to stop public employers from firing workers who use medical marijuana.

Polsky, a Boca Raton Democrat, filed a similar bill last year. Duran, a Miami Democrat, is serving as a co-sponsor on this year’s version.

In 2016, Florida voters approved an amendment legalizing marijuana for medical use. In the 2019 Session, the Legislature approved a bill allowing the sale of a smokable form of medical marijuana. However, many employees are still required to undergo drug tests and under current law, a positive test can result in an individual being fired.

“Since Floridians overwhelmingly approved medical marijuana in our state, leaders in the Legislature have repeatedly implored that we ‘treat this like any other medicine’ — but when it comes to giving medical marijuana patients basic employment protections that simply is not the case,” read a joint statement from the lawmakers released Thursday.

“A veteran with PTSD working in a school district shouldn’t have to lose his job because of the medical treatment recommended by his doctor; just like someone seriously injured in a car accident should not — and cannot — lose their job for testing positive for prescribed painkillers. If the Legislature is serious about treating medical marijuana like medicine, we must extend these basic protections to public employees.”

The measures from Polsky (SB 692) and Duran (HB 335) would do just that, and would also add protections for job applicants.

“An employer may not take adverse personnel action against an employee or a job applicant who is a qualified patient using medical marijuana,” the bills read.

The legislation does add an exception for employees whose job performance is lagging because of the drug. An employer must establish “by a preponderance of the evidence” that “the employee displays specific articulable symptoms while working which decrease or lessen the performance of his or her duties or tasks.”

If a public employee or job applicant does fail a drug test, they must be given a chance to explain whether the positive test resulted from a medical marijuana prescription. “The employer must provide written notice within 5 business days after receipt of the positive test result to the employee or job applicant,” according to the measure. The employee or applicant then has another five days after receiving the notice to contest the result.

The legislation goes further, even for individuals who don’t or can’t contest the positive test. In that case, the employer must pay for a follow-up test to verify the positive result before disciplining or firing the employee or applicant.

Employers must also attempt to accommodate employees who use medical marijuana if those employees require a change in job responsibilities. That requirement does not apply, however, if “the accommodation would pose a threat of harm or danger to persons or property, impose an undue hardship on the employer, or prohibit an employee from fulfilling his or her job responsibilities.”

Still, employees are required to keep the treatment confined to their home. Any employee who possesses marijuana at their workplace can still be fired, prescription or not.

Last Session, Polsky introduced a similar measure while she served in the House. Democratic Sen. Lori Berman sponsored the Senate version of the bill.

Now that Polsky has moved over to the Senate, she’s taking up the Senate legislation.

Last year’s measure was more ambitious, seeking to protect private employees as well. Neither bill advanced through a single committee. So far, this year’s measure is confined to public employee protections. It’s unclear if that will change the bill’s fate once the 2021 Session begins.