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Navigating Legislation and Evolving Drug Policies

12 Jul. 2017 Posted by aadams

Freya Cooper, FEI Account Manager

During the 2016 election, 71 percent of Floridians voted to approve Amendment 2 of the Florida State Constitution and legalize the use of medical marijuana for numerous health conditions statewide. Florida Senate Bill 8A (SB 8A), signed into law in June 2017, follows through on that legalization and is the latest evolution of marijuana’s place nationwide.

But what is in the bill? And how does it impact the workforce?

Senate Bill 8A Is a Step, But in What Direction?

While SB 8A looks like a step towards easier use of medical marijuana in Florida, its failure to address important aspects of employer accommodation of said use leaves the ambiguities of Amendment 2 unresolved and seems certain to lead to future litigation.

After passing in both the House and Senate by wide margins, SB 8A was submitted to the office of Florida Governor Rick Scott for final approval on June 9. Governor Scott said that he “absolutely” intended to sign the bill, which he did on June 23, thus implementing Amendment 2 and legalizing (under certain complex conditions) the use of medical marijuana throughout the state. While this all sounds very definitive on the surface, let’s have a quick look at how SB 8A points to some of the limitations involved in Amendment 2 in the first place.

Halfway Home Doesn’t Quite Get Us There

The limitations are largely related to accommodating medical marijuana use in the workplace. Amendment 2 specifically states that it does not require employers to allow the medical use of marijuana in the workplace, and SB 8A stops short at exactly the same point. In fact, the bill explicitly states that employers may establish, maintain or continue drug-free workplace policies at their discretion. The language of neither the amendment nor the bill prevents employers from banning people from using or being under the influence of legal medical marijuana.

Furthermore, SB 8A specifically states that it does not create a cause for action against the employer for wrongful firing or discrimination. The bill also defines marijuana usage in such a way that it is not reimbursable under chapter 440 of Florida’s Worker’s Compensation Law. In other words, licensed users of medical marijuana are welcome to treat their conditions with cannabis to their heart’s content—as long as they’re willing to risk losing their jobs without compensation for doing so.

Legislation of this magnitude typically leads to heavy doses of litigation in the immediate aftermath of its passing, but this is a situation that seems to guarantee that a glut of difficult and hazy cases will soon be entering our courts.

Suggested Guidance for Managers and Supervisors

When tackling challenges presented by medical marijuana, evolving legislation and workplace policies, Bill Current provided the following suggestions in a 2016 Current Compliance State Drug Testing Laws Monthly newsletter:

  • Address medical marijuana in the company’s drug-free workplace policy. Acknowledge the law and the company’s intention to comply with the law.
  • At the same time, state in the policy that the federal government still considers marijuana an illegal substance and as a Schedule I Controlled Substance, and that the company intends to comply with the federal law. The DEA confirmed this officially again in 2016 by deciding to not reschedule marijuana.
  • Prohibit employees from being under the influence of marijuana while at work or while representing the company.
  • Clearly state in the policy what the consequences will be for policy violations.

Sharon Bottcher, in the same newsletter, stated that education and training of supervisors and employees is vital to a program’s success and may be mandated in specific states or on a federal level. All employees and supervisors should receive education and training before a program is implemented, periodically as a refresher training or when updates to a company’s program occur. Bottcher also states that supervisors play a significant role in an effective drug-free workplace program, as part of their job is to ensure a safe and productive workplace.

The complexities of legalizing a previously illegal substance are many, and ironing out the details state-by-state will take time. In the meantime, this article details where marijuana, either recreational or medical, is currently illegal.

Having trouble navigating drug-free workplace policies in your organization or community? Talk with an FEI account manager today.

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