Medical Marijuana Patient Protection Act

MMJ Employee Protections in Florida

Medical Marijuana Patient Protection Act

Since 2016 when Florida voters approved a constitutional amendment legalizing medical marijuana, over three hundred thousand Floridians have received a medical marijuana card. By following the rules and regulations laid out by the Department of Health’s Office of Medical Marijuana Use (OMMU), patients have been protected from state marijuana convictions; however, they have not been granted employment protections and may be at risk for losing their jobs.

This may soon be changing as Florida is considering legislation that will extend certain protections to Qualified Medical Marijuana Patients in Florida. Two Democratic lawmakers, state Rep. Tina Polsky of Boca Raton and state Sen. Lori Berman of Delray Beach, filed the Medical Marijuana Employee Protection Act (HB 595 and SB 962 ) ahead of Florida’s 2020 legislative session. The bill “prohibits an employer from taking adverse personnel action against an employee or job applicant who is a qualified patient using medical marijuana” and outlines rights for employees who test positive for MMJ usage.

Safety-Sensitive Positions

One of the main concerns that come to mind when thinking of employees using medical cannabis is the effect it may have on their job performance. To ensure the safety of employees and others are not impacted, there are some exceptions outlined in the bills, which include employees in “safety-sensitive” positions such as teachers, firefighters, school bus drivers, and police officers. “Safety-sensitive” is defined in each bill as including tasks or job duties that the employer reasonably believes could affect the safety and/or health of the employees performing those tasks or job duties, or that of other persons, including, but not limited to, the following:

  • The handling, packaging, processing, storage, disposal, or transport of hazardous materials;
  • The operation of motorized vehicles, equipment, machinery, or power tools;
  • The repair, maintenance, or monitoring of any equipment, machinery, or manufacturing process, the malfunction or disruption of which could result in injury or property damage;
  • The performance of firefighting duties;
  • The operation, maintenance, or oversight of critical services and infrastructures, including, but not limited to, electric, gas, and water utilities or power generation or distribution;
  • The extraction, compression, processing, manufacturing, handling, packaging, storage, disposal, treatment, or transport of potentially volatile, flammable, combustible materials, elements, or chemicals, or any other highly regulated components;
  • The dispensing of pharmaceuticals;
  • The carrying of a firearm; and
  • The direct care of a patient or child.

Next Step

If passed, the Florida Medical Marijuana Patient Protection Act could add medical marijuana use as a new protected class of job applicants and employees under Florida law. Employers would be required to justify a failure to hire an applicant who is a medical marijuana user as well as to justify an adverse employment action against them. Medical marijuana users would be required to hold a valid medical marijuana card issued by the OMMU. The new law would also require employers to demonstrate by a preponderance of the evidence that the employee’s ability to perform his or her job duties is impaired his or her lawful use of medical marijuana. If an employer fails to do so, the affected employee can seek and obtain injunctive relief (including job reinstatement), damages for lost wages, and an award of his or her attorney’s fees.

Upon becoming law, the Medical Marijuana Employee Protection Act will not only open the door for hesitant patients to become legal medical marijuana card holders but will greatly reduce some of the current anxiety faced by employees who choose the benefits of medical cannabis usage over possible repercussions from their employer.

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