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The Worker’s Compensation Consequences of Medical Marijuana

The passage of Amendment 2 in November 2016 did not automatically allow sick people to smoke marijuana anytime they wanted –and most certainly not at work. Amendment 2 legalized the use of medical marijuana by qualifying individuals with debilitating health conditions. The qualifying health conditions include: 

  • Cancer
  • Epilepsy
  • HIV
  • AIDS
  • PTSD
  • ALS
  • Crohn’s Disease
  • Glaucoma 

Amendment 2 became Senate Bill 8A, and was signed into Florida law on June 23, 2017, as Florida Statute § 381.986. While the passage of the Law ultimately cleared up many questions about who may use medical marijuana, it created a plethora of questions for employers who have employees with debilitating conditions. 

The Florida Legislature expressly addressed a number of employment law issues: like whether employers must accommodate medical marijuana users and how does medical marijuana effect an employer’s drug free policy. 

According to the Americans with Disabilities Act (ADA), employers must provide accommodations for individuals that have debilitating conditions to take medication at work. 

However, marijuana is still considered an illegal substance by the Federal government and the ADA does not protect the use of illegal substances by employees. In addition, F.S. § 381.986 expressly prohibits medical marijuana use in the workplace without an employer’s permission. 

Worker’s Compensation 

An arguably unforeseen effect of Amendment 2 is the way the law affects worker’s compensation laws in Florida. A Florida employer’s decision to allow its employees to use marijuana could drastically affect an employer’s worker’s compensation premiums. 

Florida Worker’s Compensation Statute § 440.102 allows an employer that operates a drug-free workplace program to be entitled to worker’s compensation discounts. With the new medical marijuana law, not only could an accommodating employer face higher premiums, but it could also subject an employer to liability when workers are impaired at the workplace. 

The medical marijuana statute, (F.S. § 381.986), does, however, provide some levels of protection for Florida employers. For example, the Statute expressly disallows a cause of action to be brought against an employer for wrongful discharge or discrimination for using medical marijuana. 

Since employers must accommodate employees with medical conditions, it necessitates that employers cannot pick and choose which employees to accommodate and which conditions to accommodate. The Law, however, allows Florida employers to rest easy knowing that they will not be subject to a lawsuit should they deny employees medical marijuana accommodations. 

The Florida Statute also allows an employer to choose whether it will allow a employee with a debilitating condition to use medical marijuana. Accordingly, an employee must seek permission from his or her employer before using. 

Thus, while medical marijuana is legal in Florida, it is still highly regulated and has infiltrated multiple areas of life that require additional honing via regulation and explanation. 

How and if employers choose to deal with an employee that uses medical marijuana to treat a debilitating condition will present a multitude of issues that will ultimately be resolved in the Florida court system. 

If you or someone you know qualifies for medical marijuana and would like to understand how Florida Statute § 381.986 could effect his or her work environment, contact an experienced criminal defense attorney. 

The Hoffman Law Firm services clients throughout South Florida, in areas like Miami, the City of Aventura, and the communities in Miami-Dade County. 

Call (305) 940-2307 to schedule a free consultation with an experienced Worker’s Compensation Attorney.

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Evan A. Hoffman

Evan A. Hoffman

Mr. Hoffman’s philosophy is "our knowledge and experience is your best defense." He has been a featured author on criminal law issues such as driving under the influence, domestic violence and illegal searches.

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