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Summary of differences between federal and state regulations
Medical marijuana
Under the state’s medical marijuana law in Article X, Section 29, of the Florida Constitution, a employer may establish, continue, or enforce a drug-free workplace program or policy. Employers are not required to accommodate any on-site medical use of marijuana or any employee working while under the influence of marijuana.
Employers must consider off-duty use as an accommodation. An employee’s job duties can be taken into account when accommodations are considered.
Marijuana cannot be smoked in an enclosed indoor workspace. A property owner can also restrict vaping.
A registered qualifying patient complying with the state’s medical marijuana law is not subject to criminal or civil liability.
Court Cases
Giambrone v. Hillsborough County, Circuit Court of Hillsborough County, December 12, 2024
A state court ruled that employers must consider off-duty use as a reasonable accommodation for a medical marijuana cardholder.
In this case, an emergency medical technician was suspended without pay after testing positive for marijuana on a random drug test. The EMT had been lawfully prescribed medical marijuana for anxiety and severe insomnia and claimed that the county discriminated against him in violation of the Florida Civil Rights Act.
The county claimed that the suspension was lawful because:
- Marijuana is illegal under federal law,
- The employee failed a drug test, and
- The employee did not ask for an accommodation for his use of medical marijuana before the failed test.
The court ruled in favor of the employee, saying that the county’s refusal to accommodate off-duty medical marijuana use was discriminatory.
The county’s Drug-Free Workplace Policy allowed employees to provide evidence of legitimate use of prescription and non-prescription medication in the event of a positive test. The employee provided a medical marijuana card within the timeframe required by the policy.
The court noted that the employee had no reason to ask for an accommodation in advance. In addition, the employee did not use marijuana at work and it did not impact job performance.
As a result, the court ruled that the employer violated the Florida Civil Rights Act by failing to accommodate the employee’s off-duty use of medical marijuana.
Ortiz v. Department of Corrections, Florida Court of Appeals, First District, June 21, 2023
The appeals court found that an employee with a medical marijuana card who worked for the Department of Corrections could be terminated because the employee could not perform job requirements relating to firearms. Under federal law the use of marijuana by someone in possession of a firearm is unlawful.
In this case, an employee of the Florida Department of Corrections failed a random drug test for marijuana. The employee had a valid medical marijuana card and used medical marijuana to treat post traumatic stress disorder. After being fired for the failed drug test, the employee sued, noting that the marijuana use occurred during off-duty time and there was no impairment at work.
The court noted that corrections officers must be qualified to use firearms, and under federal law it is a felony for an individual who uses an illegal controlled substance (including marijuana) to possess a firearm. The use of marijuana does not need to happen at the same time an individual is in possession of a firearm. The unlawful use must have occurred recently enough to indicate than an individual is actively engaged in the conduct or has used the drug for an extended period of time.
Because the employee was a regular user of medical marijuana, possession of a firearm was unlawful. This prevented the employee from performing job requirements that included training with and using firearms. As a result, the court ruled that the termination was allowed under the law.
Recreational marijuana
Florida has no statutes regarding recreational marijuana.