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Following the passage of Amendment 2, which legalized the use of marijuana for medical reasons, there have been open questions as to how the amendment and its implementing legislation would affect employment decisions relating to employee use of medical marijuana. Seven years on from its passage, Florida courts are beginning to offer answers for employers. The latest such case is Giambrone v. Hillsborough County, which addressed an employer's obligations to accommodate an employee's off-duty use of medical marijuana to treat their disability.

The Americans with Disabilities Act and Florida Civil Rights Act

The Americans with Disabilities Act ("ADA") and Florida Civil Rights Act ("FCRA") each apply to employers that employ 15 or more employees. The question of whether employers must accommodate or accept employee consumption of drugs made illegal by federal law is easily answered by the ADA: it expressly permits employers to make employment decisions based on an employee's use of illegal drugs. Thus, the ADA would not protect the use of medical marijuana because, despite Florida law, marijuana remains an unlawful drug under federal law.

The FCRA, in contrast, is not so clear. The FCRA only states that an employer may not discriminate on the basis of disability. While the FCRA is generally construed in accordance with federal law, such as the ADA, questions have lingered since the passage of Amendment 2 in 2017 as to the obligations of employers to accommodate or tolerate employee medical marijuana use.

Florida's Constitutional Amendment and Enabling Legislation

Pursuant to the Florida Constitution and section 381.986, Florida Statutes, employers are under no obligation to accommodate marijuana use that occurs on-site or during work hours. Florida law, however, is less unequivocal about an employer's accommodation obligations for off-site medical marijuana use. This is where the recent litigation in Florida has focused.

Florida Courts Weigh In

The first reported Florida case addressing employer obligations to accommodate off-site medical marijuana use was Velez Ortiz v. Department of Corrections, 368 So. 3d 33 (Fla. 1st DCA 2023). There, a correctional officer was terminated for his use of medical marijuana while off-duty.  In a narrow ruling, the appeals court found the employer acted lawfully in terminating the correctional officer because his use of medical marijuana, even if only while off-duty with no effects while he was on-duty, rendered him unable to perform him job duties consistent with employer rules and policies, as well as applicable licensing requirements. That said, the court avoided directly addressing the scope of an employer's obligations to accommodate off-duty medical marijuana use.

Recently, however, a Florida trial court has squarely addressed that issue. Angelo Giambrone was an emergency medical technician employed by the Hillsborough County Fire Department. He had been prescribed medical marijuana to treat his disabilities. The employer offered no evidence that Giambrone used marijuana while at work or that the marijuana impaired or affected his work in any way.

Giambrone was selected for a random drug screening. Giambrone tested positive and provided his medical marijuana license to the medical review officer in accordance with employer policy. Importantly, the employer's policies did not single out medical marijuana use in any way; rather, it treated all prescribed drugs similarly: if a drug test was positive because of a validly prescribed medication, the test result was to be treated as negative. The employer declined to treat the test result as negative, declined to accommodate Giambrone's use of medical marijuana off-duty, and placed him on indefinite administrative leave.

Giambrone sued, alleging violations of the FCRA. The trial court found that the employer had violated Giambrone's rights under the FCRA. According to the trial court, the express language concerning the lack of protection for on-site medical marijuana use in the constitution and enabling legislation necessarily meant that off-site medical marijuana use was protected and was subject to the FCRA's prohibition against discrimination. The trial court also distinguished the Velez Ortiz decision on the grounds that, unlike in Velez Ortiz, there was no policy or employer rule, or other requirement applicable to his job duties (such as a licensing requirement), prohibiting the use of validly prescribed medical marijuana. For these and other reasons, the trial court awarded summary judgment to Giambrone. The case is currently on appeal and may ultimately be overturned by an appellate court.

What Does it All Mean for Florida Employers?

Legal niceties aside, the dividing line between Giambrone and Velez Ortiz is that one employer had policies that adequately protected its right to regulate off-duty marijuana use and one did not. The former prevailed, and the latter is now seeking relief from the appellate court. Given the changing legal landscape surrounding marijuana use, as well as changing societal norms relating to its use and consumption, now is the time for employers to reevaluate their drug use policies. There is much to consider when evaluating these policies, but being proactive ensures that you won't be caught dazed and confused.

For guidance on updating your drug policies and ensuring compliance, contact BMD Member Joshua La Bouef at jrlabouef@bmdpl.com or Partner and Labor & Employment Co-Chair Bryan Meek at bmeek@bmdllc.com.