A Florida state court recently held that an employer violated the Florida Civil Rights Act by failing to accommodate an employee’s off-duty, off-site medical marijuana use to treat his disabilities.

The court granted summary judgment in favor of the former employee, whom the employer had placed on unpaid administrative leave after he tested positive for marijuana during a random drug screening.

Quick Hits

• A Florida state court ruled that employers must accommodate off-site medical marijuana use, granting summary judgment in favor of a former employee who had been placed on unpaid administrative leave after testing positive for marijuana.
• Although the use of marijuana is still prohibited under federal law, the employee, an emergency medical technician, was licensed by the state of Florida, and his CBA allowed employees to report the use of prescription medications authorized under both federal or state law upon testing positive on a drug test.
• Florida employers may want to review their drug-free workplace policies for language regarding marijuana usage and consider removing policy language indicating that they will not accommodate the off-duty use of medical marijuana.

Background

Angelo Giambrone was employed by Hillsborough County, Florida, as an emergency medical technician (EMT) for the county’s fire department. During a random drug screening, Giambrone tested positive for marijuana. Following the positive test, Giambrone presented his employer with a valid medical marijuana card. According to the lawsuit, Giambrone takes medical marijuana for anxiety, PTSD, and insomnia.

According to the lawsuit, Giambrone v. Hillsborough County, the county placed Giambrone on unpaid administrative leave because it refused to accommodate Giambrone’s use of medical marijuana. The sole reason for Giambrone’s suspension was the positive random drug test. There was no evidence that Giambrone used marijuana at work, possessed marijuana on work premises or during work hours, showed up to work impaired, or had any complaints or suspicion of impairment while on the job. The county also reported him to the EMT licensing board, which eventually dropped its investigation into Giambrone based on his status as a medical marijuana cardholder.

Giambrone filed a lawsuit in Florida state court, alleging disability discrimination for failing to accommodate his use of medical marijuana under the Florida Civil Rights Act. He alleged wrongful termination and breach of contract for failure to accept his state-issued medical marijuana card as a justification for a positive drug test. In opposition, the county argued that a medical marijuana card does not exempt Giambrone from complying with federal law and the county’s drug-free workplace policy.

In granting Giambrone’s motion for summary judgment, Circuit Court Judge Melissa M. Polo concluded that the Florida State Constitution requires employers to accommodate the off-site use of medical marijuana. However, Judge Polo reminded employers in her opinion that the Florida Constitution does not have a duty to accommodate on-site use of medical marijuana.

Judge Polo was not persuaded by the county’s argument that it did not have a duty to accommodate medical marijuana because marijuana is still illegal under federal law. This was in part because Giambrone’s EMT license was controlled by the state of Florida. Judge Polo further distinguished a case cited by the county, Ortiz v. Department of Corrections, where the Florida State Department of Corrections was not required to accommodate a correctional officer’s medical marijuana use because it directly conflicted with a federal firearm possession law, a condition not at play in Giambrone’s case. Furthermore, the opinion noted that language in Giambrone’s collective bargaining agreement allowed employees to report the use of prescription medications authorized under both federal or state law upon testing positive on a drug test. The county has appealed the decision.

Key Takeaways

In light of this decision, Florida employers may want to consider entering into an interactive disability accommodation process with job applicants or employees who are medical marijuana cardholders. However, Florida employers can rest easy knowing they still do not need to allow their employees to show up to work under the influence of medical marijuana, or possess marijuana on company property. The opinion serves as a good reminder to Florida employers to handle medical marijuana issues carefully and to consider focusing on reasonable suspicion testing and training.