As Florida legislators consider passing laws this year to regulate the new and growing medical marijuana industry, employers in the state are still faced with mounting grey areas in how to handle employment policies related to drug use.
There are more questions than answers for companies big and small, which enforce a drug-free workplace policy with their employees, said Greg Hearing, a shareholder with the Thompson, Sizemore, Gonzalez & Hearing law firm in Tampa. Hearing, who specializes in employment law, published an article in the Florida Bar Journal last month with his associate, Michael Balducci, outlining what employers need to know.
"This is a lawyer's dream," said Hearing during an interview with the Tampa Bay Times at the firm's downtown Tampa office. "Employers in the private sector will have more ability to enforce drug-free policies and no drugs in the workplace. But still, there's not much they can do until the laws change. Technically marijuana is still illegal under federal law."
The Times sat down with Hearing to learn more.
Most employers screen for marijuana in routine drug tests. How has legalizing medical marijuana affected that?
It's up to each individual employer to decide how to accommodate employees who may be using marijuana products, either in the workplace or at home. I think in a lot of cases, employers won't know that their employees are using medical marijuana until they test positive in a drug test. Employees don't necessarily have to be up front with their employers about this. Technically marijuana is still an illegal drug on the federal level, and it will be up to the employer to decide how they want to enforce their own drug-free workplace rules.
Where do you see room for abuse of the system for employers?
There is still concern for safety in the workplace. Patients might not be getting high using the marijuana products available, but those same employees could still be buying pot illegally and using it, which would be masked on any given drug test. It will be difficult for employers to know the difference from the results of a drug test. Or what if patients are using the products at work? It's still unclear how employers can enforce (a policy on) an employee not to use it while they're working.
Another issue will be for employers that have offices in different states. How do you write a blanket policy that affects all employees, but may not be enforceable in specific states? That's still uncharted territory.
What kind of power do employers have if employees are obtaining and using marijuana products legally?
Employers in the private sector will be able to set their own rules, but could face lawsuits if they try to restrict employees from using it at work or if they are treated one way or another based on the results of a drug test. I think we'll start to see some of these cases bubble up this year in Florida courts. Until the laws are set, it could go either way. We've seen lawsuits like these in other states but there's still no black-and-white answer. One case I remember from Colorado was over an employee who worked from home for a call center company and used marijuana. It was determined that he was using marijuana on his own time, but the question was, "Is this person working while impaired?” Another case involved a caretaker employee distributing marijuana from the workplace.
Some major employers in Florida are more political than others. Publix tends to be conservative and its founding family members have been linked to campaign donations that fought against legalizing marijuana. Do you think we'll see companies take a stand like Hobby Lobby did over birth control or something similar?
I've gotten a flurry of phone calls from clients asking for more information on this topic because of reasons like this. It's tough to take a stand one way or another based on a moral issue. Employers have the right to set their own policies. That much is clear. This will only affect a small number of employees who qualify for medical marijuana in Florida, at least for now.
Contact Justine Griffin at email@example.com or (727) 893-8467. Follow @SunBizGriffin.