Florida Marijuana Laws & Considerations

Florida has medical marijuana but recreational marijuana has failed twice on the ballots. Voters have rejected legal recreational marijuana. Florida employers can maintain a drug free workplace with drug testing for marijuana. An employer can elect to provide an accomodation for medical marijuana card holders but are not required to do so. Employers in Florida have the right to perform drug testing and may take measures (such as declining to hire or terminating employment) based on a positive result for marijuana, including for those who hold medical marijuana cards.

Medical Marijuana

Recreational Marijuana

Employer Concerns – Significant to Review

Florida law does allow medical marijuana
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.
A case decision determined that employers are not required to pay for or facilitate an employee’s obtainment of medical marijuana.
Florida has a voluntary drug testing law that, although not required, if an employer elects to comply, they will qualify for a workers’ compensation premium discount – Florida Drug Free Workplace Program (Florida Statutes 440.102)
The Florida Drug Free Workplace requires blood as the specimen to be tested for alcohol. This is particularly important for the above denials for workers’ comp claims and unemployment compensation claims. Urine or hair are the specimens allowed for drug testing.
Florida has unemployment and workers’ compensation voluntary laws that, although not required, with compliance, an employer has greater latitude to deny claims.
Drug testing is required by the state for certain public contractors

Testing

See Significant above.
Drug testing for marijuana remains legal in Florida
Marijuana can be removed from the drug testing panel

Hiring/Termination

Florida statutes allow medical marijuana, a marijuana card is issued for individuals that have certain medical conditions. The Florida Statute (381.956) does specifically provide language that that an employer is not required accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. With little case law on this subject in Florida, employers are advised to use caution when refusing to hire a potential employee or firing an employee based on a positive marijuana test and the employer has an authorized medical marijuana card. Another option in Florida as in all states is to remove marijuana from the drug testing panel.

Discipline

No restrictions but use caution with medical marijuana patients.

Use/Possession

Consumption prohibited in public places unless employer authorizes use.

Smoking is permitted (as of March 2019).

No consumption in transportation vehicles (car, boat, train, etc.).

Edibles are legal, but must have been commercially produced.

Other Impacting Laws

(e.g., drug testing, workers’ compensation, unemployment)

If an employee tests positive causing a discharge, he or she will not be eligible for unemployment compensation when the employer is adhering to the Florida drug-free workplace program and the Florida unemployment laws.
If an employee tests positive causing a discharge, it will be presumed intoxication was the cause of the injury (rebutted only by clear and convincing evidence) and he or she will not be eligible for workers’ compensation for his or her injury when the employer is adhering to the Florida drug-free workplace program and the Florida workers’ compensation laws.
Apply the Checklist of Impacting Issues for Employee Use of Marijuana provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.

Sources

(e.g., Bill Number, Authority)

Florida Constitution Art. X Sec. 29 – Medical marijuana law
Fla. Stat. Ann. § 381.986 – Medical marijuana related
Fla. WC Code 440.102 – Drug testing related
Fla. Admin. Code 59A-24 et al. – Drug testing related
Fla. Stat. Ann. 443.101 – Unemployment related
Fla. Stat. Ann. 440.09 – Workers’ compensation related

Disclaimer

This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Caution

Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).

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