Understanding rights at work if you use medical marijuana
Having a medical marijuana card in Florida won’t keep you from getting fired for drug use.
A contradictory patchwork of rules has left some people bewildered. They figure they’re using marijuana for a medical condition, and yet their workplaces have taken action against them under federal law, which outlaws marijuana.
A number of workers — a U.S. Marine veteran with PTSD from Ocala, a Brevard County teacher, a tech worker in West Palm Beach — have lost their jobs over their marijuana use. Now a proposed state law aims to finally clarify the rights of workers, more than four years after a majority of Florida voters approved medical marijuana.
Here’s how experts suggest handling potential workplace problems.
Q: I have a medical marijuana card. Should I tell my employer and, if so, when?
Honesty is the best policy when talking with your employer about your use of medical marijuana, according to attorney Dustin Robinson, founding partner of Fort Lauderdale-based Mr. Cannabis Law, which specializes in legal issues surrounding medical marijuana and psychedelic drugs.
“My policy is: ‘If they ask you, always be honest,’ ” Robinson said. “There might be [medical privacy law] implications, so I don’t know that an employer would even be allowed to ask that. But if you know you’re going to get drug tested, I would be open and honest with my employer and let them know I have a medical marijuana card.”
To use medical marijuana in Florida in compliance with state law, first you need to get a card from a physician who is specially trained and certified by the state. The Florida Office of Medical Marijuana keeps a directory of those physicians on its website.
In Florida, medical marijuana is recommended for serious health conditions such as cancer, Crohn’s disease, multiple sclerosis and post-traumatic stress disorder. But doctors also can recommend medical marijuana for chronic pain or other conditions related to those approved by the state.
The cards are $75, paid to the state, which typically takes about 10 days to review and process payments, but they could take longer due to recent increases in applications. Once people have a card, they may purchase medical marijuana from a dispensary, because doctors cannot sell the product itself.
While some employers have zero-tolerance policies, others take a progressive approach to discipline that may start with a warning or suspension and repeat offenses could result in termination. Some workplaces are ignoring marijuana use completely.
Your options in talking with your employer about medical marijuana will depend on a lot of details, such as whom you work for and what you do.
“It’s a tough question,” Robinson said. “There’s no right answer.”
Q: Do drug tests show if an employee recently used medical marijuana?
”Marijuana is unique in that there are no drug tests that show whether you’re impaired when you take the test versus having taken the drug the day before or a week prior,” said Cathleen Scott, managing partner at Scott Wagner and Associates, a West Palm Beach law firm that specializes in employment, civil rights and health care law.
The duration that marijuana can stay in someone’s system depends on how often they use it, but most urine tests can detect marijuana multiple days or even over a month after someone last used it.
So an employee who uses medical marijuana to treat a chronic illness or severe anxiety each night can go to work the next day completely sober, but if they’re tested for marijuana, positive result. they will likely receive a
Q: Have companies stopped testing for marijuana?
More companies are dropping marijuana tests, out of concern for losing talented workers, Scott said.
AutoNation, the largest car dealer in the U.S., quietly stopped testing job applicants for marijuana in 2016. They still ban employees from using medical marijuana at work, and employees who get into a car accident while driving on the job, for example, can still be fired if they test positive for marijuana.
The common thread, even among progressive workplaces, is that what you do at home and on your time is your business, just don’t show up to work impaired. If medical marijuana is taking a visible toll on your performance, you should expect to be tested and prepared to be disciplined or fired.
Many employers have moved away from testing for marijuana, even though they may not publicize their policies.
Q: What option do workers have if they’ve been fired for medical marijuana?
Experts agree that workers could have a few options in arguing that their firing was illegal or violated workplace policies.
The Americans with Disabilities Act does not protect medical marijuana users, because marijuana is still federally illegal.
The Florida Civil Rights Act, however, protects against unfair discrimination, including on the basis of a disability, employment lawyers say. That worker may need to provide evidence to a court of a genuine disability, such as medical records.
If an employee of a workplace that requires reasonable suspicion of drug use before a drug test is tested without that bar being met, there could also be constitutional issues, Scott said.