Medical Marijuana: 3 Things Employers Need to Know

Florida voters won’t have their chance to fully legalize medical marijuana until Nov. 4, but business owners are already sweating.

“The employers that are my clients are starting to ask questions about this law that is probably going to be on the books by the end of the year,” said Angelo Filippi, director of the employment and labor law practice group of South Florida law firm Kelley Kronenberg.

The firm started as a workers’ compensation law firm in the 1980s, and it’s grown to many more practice areas and 12 offices, including locations in Miami, West Palm Beach, Plantation and Miami Lakes.

Here are employers’ top three questions about medical marijuana, according to Filippi. None of these questions has a definite answer yet, he said. After all, legalization could be months or years away.

Can I still conduct drug tests?

If one of your employees has a physician certification for medical marijuana, is it legal to threaten his or her employment over a failed drug test?

“Yes, you can still do drug testing,” Filippi said. “In my view, you can still have policies that prohibit users from, at least, acting in certain capacities.”

Employees who put themselves or others at risk by smoking weed before work – school bus drivers, say, or construction workers at a high-rise building – could still be subject to employment action, he said.

Can I ask an employee if he or she uses medical marijuana?

Asking employees whether they use medical marijuana could be seen as a question about whether they have an impairment – which could violate the Americans with Disabilities Act.

“Medical examination or inquiry of an employee must be job-related and consistent with business necessity,” the ADA website states. “Employers may conduct employee medical examinations where there is evidence of a job performance or safety problem.”

Many other ADA compliance questions will arise if medical marijuana is legalized, Filippi said. Do you allow medical marijuana patients to take leave so they can manage pain during work? Do you allow them to keep working while high?

“A lot of those issues you deal with on a case-by-case basis, even though there are some restrictions that you have to put in place as a matter of policy,” Filippi said.

Can I deny workers’ compensation to an employee who gets in an on-the-job accident after using medical marijuana?

This question will be a new one for the firm if and when medical marijuana is legalized across the board, and Filippi doesn’t know just what the answer will be.

“All we can do is provide what we know today,” he said. “We lay out the facts. We tell [clients] what is and we tell them what could be based on the laws in other states. We can’t really assume because we don’t know.”