Make us your home page
Instagram

Could you lose your job for testing positive for marijuana if you're a patient in Florida? Maybe

Gregory A. Hearing is a shareholder for Thompson, Sizemore, Gonzalez & Hearing, P.A. He practices employment & labor law for public and private sector clients across the country. 
[Photo courtesy of  Thompson, Sizemore, Gonzalez & Hearing, P.A.]

Gregory A. Hearing is a shareholder for Thompson, Sizemore, Gonzalez & Hearing, P.A. He practices employment & labor law for public and private sector clients across the country. [Photo courtesy of Thompson, Sizemore, Gonzalez & Hearing, P.A.]

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.

 

RELATED: It may be legal now, but opening a medical marijuana store in Florida is harder than you think.

 

 

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 jgriffin@tampabay.com or (727) 893-8467. Follow @SunBizGriffin.

Who can get medical marijuana in Florida?

 

Existing state law lets terminally ill patients buy and use full-strength marijuana and certain other patients, including children with cancer and severe epilepsy, use low-THC (tetrahydrocannabinol) cannabis. While lawmakers and health officials write new marijuana laws that must go into effect this summer, the Florida Department of Health has left it up to doctors to decide whether they will also recommend cannabis to qualified patients diagnosed with a debilitating medical condition listed in Amendment 2, like Lou Gehrig's disease, cancer, epilepsy, Crohn's disease, HIV/AIDS, glaucoma, multiple sclerosis, Parkinson's disease or PTSD.

 

How to get it?

Patients must receive a "recommendation" from a certified doctor in Florida who has been treating them for at least three months. Then patients can visit one of the seven licensed companies in the state to purchase a variety of marijuana products. Medical insurance policies don't cover the cost of medical marijuana products, and customers could pay from $30 to $250 on average a month. Some companies offer delivery services.

 

What can I get from a store or delivery service?

Medical marijuana products are offered in two forms in Florida: a low-THC (tetrahydrocannabinol) product, which has less of the chemical that causes a euphoric high, and a CBD (cannabidiol) cannabis oil. Products come in the form of tincture oils, oral sprays and vaporizer cartridges that are used in an e-cigarette or vapor pen.

Could you lose your job for testing positive for marijuana if you're a patient in Florida? Maybe 03/30/17 [Last modified: Thursday, March 30, 2017 12:49pm]
Photo reprints | Article reprints

© 2017 Tampa Bay Times

    

Join the discussion: Click to view comments, add yours

Loading...
  1. Culver's crosses into Brandon near Selmon Expressway

    Business

    BRANDON — Like many children, Theresa Hutchins recalls pleading with her parents to take her for ice cream.

    Theresa Hutchins and her fianc? Mike Carelli opened the Tampa Bay area’s newest Culver’s August 28 in Brandon at 2470 S Falkenburg Road.
  2. Back to life: Event helps Riverview revert to peaceful pace after Irma

    Human Interest

    RIVERVIEW — Robin and Ray Castell say establishing residency in the Winthrop Village was one of the best decisions of their lifetime.

    hillsbrandon092217: Meredith Tucker of Riverview, the mother of two children and another one soon on the way, browses the racks of Dot Dot Smile children?€™s clothing as company merchandiser Kelcie Schranck, standing behind her in the black shirt, looks on during the first-of-its-kind Recruiting the Community event on Sept. 17 at the Barn at Winthrop in Riverview. Photo by Joyce McKenzie.
  3. SEC says hackers may have profited from stolen info

    Business

    The Securities and Exchange Commission says its corporate filing system was hacked last year and the intruders may have used the nonpublic information they obtained to profit illegally.

    In this file photo, Securities and Exchange Commission (SEC) Chairman nominee Jay Clayton testifies on Capitol Hill in Washington at his confirmation hearing before the Senate Banking Committee. The SEC says a cyber breach of a filing system it uses may have provided the basis for some illegal trading in 2016. [AP file photo]
  4. Trigaux: For Class of 2016, college debt loads favor Florida graduates

    Banking

    Florida college graduates saddled with student debt: Take heart. The average debt Class of 2016 Florida grads must bear is less than students in most states.

    University of South Florida undergraduates gather at the USF Sun Dome in Tampa for last fall's commencement ceremony. A new survey finds their average student debt upon graduating was $22,276. Statewide, 2016 Florida grads ranked a relatively unencumbered 45th among states, averaging $24,461 in student debt. [Photo Luis Santana | Times]
  5. After Hurricane Irma, many ask: How safe are shelters?

    News

    NAPLES — Residents of the Naples Estates mobile home park beamed and cheered when President Donald Trump and Gov. Rick Scott strolled amid piles of shredded aluminum three days after Hurricane Irma to buck up residents and hail the work of emergency responders. But almost nobody had anything good to say about …

    The Islamic Society of Tampa Bay Area opened its doors to anyone seeking temporary shelter during Hurricane Irma. Evacuees were housed in the Istaba multipurpose building and was quickly at capacity housing over 500 people. [Saturday, September 9, 2017] [Photo Luis Santana | Times]