It Is Decision Time
The Florida Medical Marijuana Legalization Initiative, also known as Amendment 2, was approved by voters back on Tuesday, November 8, 2016. Has your business considered changes to your policies regarding drug use and your drug free workplace program? It is time for Florida business owners to answer some tough questions about marijuana in your business.
Who can use Medical Marijuana?
For the record, Florida law provides a constitutional right to use medical marijuana for individuals with certain “debilitating medical conditions”; currently these conditions include: cancer, epilepsy, glaucoma, HIV and AIDS, post-traumatic stress disorder, amyotrophic lateral sclerosis, Crohn’s disease, Parkinson’s disease and multiple sclerosis. Amendment 2 also includes a catch-all category for conditions “of the same kind or class as or comparable” to those mentioned above.
Employer or Employee Protections
Florida Statute 381.986 is vague about what a Florida-based employer should do about accommodating a medical marijuana card holder in the workplace. There is no clear statutory language giving employees protections with regard to employment. The employer is given authority to continue to enforce a drug-free workplace program. It is also clear there is no accommodation required for using or smoking marijuana at the workplace.
Marijuana — a Schedule I Drug and Still Illegal under Federal Law
For employers regulated by the United States Department of Transportation (DOT), there is a specific requirement to prohibit marijuana, and an applicant or employee is to be removed from a safety sensitive position based on a positive drug test result for marijuana (THC). There are no exceptions in DOT drug testing programs.
Currently for the non-regulated employer, the company’s philosophy must be vetted along with expert advice and decisions must be made and turned into policy. This discussion is urgent. Important specific decisions must be made regarding whether the company will do drug testing and will the company drug test for marijuana. What will the consequences be for a positive drug test? Will there be accommodations for a medical marijuana card holder? Human resource managers, safety managers and the working staff must all be educated about the company’s decisions and policies. Drug-free workplace program policies written five, 10 and 20 years ago need to be updated.
Standing Firm – Continued Drug Testing for Marijuana
For now, Florida employers should maintain their drug-free workplace and continue testing for marijuana. Consider the potential impacts of marijuana use in your workplace:
• Inconsistent work quality, impairment of hearing, vision and short-term memory.
• Poor concentration and lack of focus.
• Decreased productivity or erratic work patterns.
• Absenteeism and tardiness, unexplained disappearances from the job site.
• Carelessness, mistakes or errors in judgement.
• Needless risk taking and disregard for safety.
• Driving accidents, inability to cope with sudden changes in surrounding and/or emergency situations.
• Liability from accidents caused by employees testing positive
A strong written drug-free workplace policy can protect the employer who is testing for marijuana. Five comprehensive strategies are offered for employers to stand firm to protect their business; these include:
1. Acting with a sense of urgency to update your drug-free workplace policy language when dealing with marijuana and other drugs of abuse including synthetic opioids.
2. Knowing the safety sensitive and other work-related risks associated with marijuana and other impairing substances.
3. Creating a culture of safety, and targeting and embedding this message in supervisory training and employee education.
4. Adding as an essential job function the “ability to work in a constant state of alertness and safe manner” to every safety-sensitive job description can serve to meet the safety culture.
5. Putting all the puzzle pieces into place to form your compliant legal strategy to effectively stand firm when dealing with marijuana in your workplace.
For additional protections, when a medical marijuana cardholder has a positive drug test for marijuana, it is important to discuss and examine the situation among the highest levels of management. Do not allow a hasty decision on termination of employment or withdrawal of the job offer. Consider the possibility of making an accommodation based on the specifics of the job function and the company’s current drug-free workplace policy.
Your best practice is to take action. Talk among your leadership about medical marijuana and potential drug use in your workplace. Make decisions and put them into a new or updated comprehensive drug-free workplace policy.
Joe Reilly is celebrating his 25th year in the drug and alcohol testing industry and is the founder and president of National Drug Screening, a Melbourne-based company with 18 employees. Reilly is recognized throughout the country as a thought and policy leader on drug screening for businesses of all sizes. From 2004 to 2008 he served as the Chairman of the Board of Directors of the Drug & Alcohol Testing Industry Association (DATIA) – based in Washington