In addition to the second round of efforts to pass medical marijuana in Florida, now there are three petitions circulating to legalize recreational marijuana.

The Florida Cannabis Act includes the following language meant to provide insulation to employers with drug free workplace policies:  “Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of cannabis in the workplace or to affect or repeal the ability of employers to have policies restricting the use of cannabis by employees.”  While this language would appear to protect employers, Florida employers can expect that interpretation of these types of provisions (assuming any of these efforts pass and become law) will include requests for accommodation (under the ADA) and litigation involving whether or not Florida employers can subject employees to termination for off-duty drug use.

35535040_s

The Colorado Supreme Court recently ruled against a paraplegic employee who used medical marijuana off-duty but was subsequently terminated for violation of the employer’s drug free workplace policy.   In that case, not withstanding the fact that both medical marijuana AND recreational marijuana are legal in Colorado, the Court found that employees can still be fired for violation of a drug free policy because marijuana remains illegal in the eyes of the federal government.  The Colorado decision is really the first case to analyze an employers ability to enforce a drug free workplace policy in a state where marijuana is legal.  Further litigation on this issue is expected as more states adopt medical and recreational marijuana laws.

__________________

Dori K. Stibolt is an attorney with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.