Workplace Implications of Medical Marijuana and Off-Duty Conduct
Understanding the legal landscape surrounding medical marijuana and off-duty conduct in the workplace, including drug testing regulations, federal law implications, and public employer limitations.
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Medical Marijuana & Off Duty Conduct: Workplace Implications J. Ray Poole, Esq. A wider lens on workplace law
Floridas Drug-Free Workplace Section 112.0455, Fla. Stat. (applies to an agency within state government) Section 440.102, Fla. Stat. (applies in order to qualify for WC premium credit) No legal duty to test under these statutes A wider lens on workplace law
Floridas Drug-Free Workplace Four (4) required types of testing: Job applicant testing; Routine fitness-for-duty testing; Follow-up testing for employees who completed a drug treatment program; and reasonable suspicion testing. Random testing is allowed but not required (private sector only) A wider lens on workplace law
Public Employer Limitations Pre-employment and Random Testing Only for Safety Sensitive Positions Unless there is a statutory duty to test, typically may only conduct pre-employment and random testing for safety sensitive positions Also referred to as Special risk or Mandatory Testing positions Other Special Need What is a special need ? What positions are safety sensitive ? A wider lens on workplace law
Discipline and Discharge Drug Testing Can an HR clerk of a governmental employer be required to submit to a drug test without reasonable suspicion? If a public employee consents to a drug test, is the public employer safe to test him or her? A wider lens on workplace law
Marijuana Under Federal Law Marijuana is still classified as a Schedule I illegal drug by the federal Controlled Substances Act ( CSA ) that may not be used, possessed, manufactured, or distributed, even for medical purposes. Drugs are classified as Schedule I drugs if: 1. The drug has a high potential for abuse; 2. The drug has no currently accepted medical use in treatment in the U.S.; and 3. There is a lack of accepted safety for use of the drug under medical supervision. A wider lens on workplace law
Marijuana Under Federal Law (cont.) SCOTUS reiterated that marijuana remains a Schedule I illegal drug in U.S. v. Oakland Cannabis Buyers Cooperative (2001), stating that marijuana has no currently accepted medical use at all and cannot be dispensed and prescribed for medical use without violating the Controlled Substances Act. Attempts to re-schedule marijuana into a less restrictive category have been unsuccessful thus far. A wider lens on workplace law
DOT Regulations Applies to transportation industries and safety- sensitive transportation workers Pre-employment, reasonable suspicion, random, post-accident, return-to-duty, and post-rehab testing Publicize and distribute policy on misuse of drugs and alcohol A wider lens on workplace law
DOD Regulations Applies to defense contracts involving classified information, national security, health/safety Program must include employee assistance programs and training to supervisors Must provide avenue for referrals Random testing, reasonable suspicion, post-accident and post-rehabilitation A wider lens on workplace law
Drug-Free Workplace Act of 1988 Applies to some federal contractors and all federal grantees Publish statement Establish drug-free awareness program Notify employees of obligation to abide by policy and inform employer of conviction A wider lens on workplace law
Americans with Disabilities Act and Florida Civil Rights Act Prohibits discrimination against individuals with a disability Obligation to provide reasonable accommodations to qualified individuals with a disability Alcoholism = disability Illegal use of drugs current vs. former users Schedule I drugs and unlawful use of Rx drugs A wider lens on workplace law
The Interactive Process What is a reasonable accommodation? One that is effective. Allows employee to perform job s essential functions. Effective does NOT mean perfect or preferred by the employee. Employee bears duty of identifying reasonable accommodation. Exception: The necessary accommodation is obvious. A wider lens on workplace law
Americans with Disabilities Act and Florida Civil Rights Act Marijuana is a Schedule I drug so, current users of marijuana do not have a disability under the ADA. Therefore, no accommodation is required by the ADA. What about the Florida Civil Rights Act? Under the FCRA, employers in Florida need not accommodate illegal drug use, BUT the use of marijuana to treat debilitating conditions has been legalized in Florida. A wider lens on workplace law
Changes in Florida Law Effective January 3, 2017, passed 71.3% in favor Legalizes marijuana for the medical treatment of specific debilitating diseases or comparable debilitating conditions cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn's disease, Parkinson's disease, multiple sclerosis, or other debilitating medical conditions of the same kind or class as or comparable to those enumerated No restrictions on potency May be smoked as of March, 2019 Physician s certification is needed Patient is issued an ID card by the DOH A wider lens on workplace law
Changes in Florida Law Nothing in this section shall permit the operation of any vehicle . . . while under the influence of marijuana . . . . Nothing in this section shall require any accommodation of any on-site medical use [or possession] of marijuana in any . . . place of education or employment. Inclusion of the qualifier on-site leaves an unanswered hole in the law, as it could be interpreted by a court to mean that the accommodation of off-site and/or off-duty medical use of marijuana may be required. A wider lens on workplace law
Other States State and federal courts in other states have considered the issue of medical marijuana use and employment rights with varying results. Beginning in 2017, several courts ruled that employers could be required by state law to accommodate an employee s off-duty use of marijuana. A wider lens on workplace law
SOCIAL MEDIA AND OFF DUTY CONDUCT A wider lens on workplace law
Off-Duty Conduct and Its Workplace Implications A Look at What Speech and Expression is Protected Arrests and Criminal Conduct A wider lens on workplace law
First Amendment A plaintiff must prove: 1. The employee s speech was on a matter of public concern; The employee s First Amendment interest in engaging in the speech outweighed the employer s interest in prohibiting the speech to promote the efficiency of public services; AND The employee s speech played a substantial part in the employer s decision to demote or discharge the employee. 2. 3. A wider lens on workplace law
First Amendment But, even if the employee proves the three elements, the employer can still prevail if it can prove: The employer would have taken the same action even in the absence of the protected conduct. A wider lens on workplace law
Protected Speech or Expression Is there a First Amendment Violation? First Amendment Retaliation Case Employee, a police officer, posted comments on Facebook page supporting a former police officer in another jurisdiction who murdered fellow officers and civilians in retaliation for perceived injustices in the workplace Employee indicated that she believed actions were justified Community and co-workers complained Who prevails in the First Amendment retaliation case? A wider lens on workplace law
Protected Speech or Expression Is it protected by the First Amendment? Backtalk A nurse of a public hospital is pulled over and issued a speeding ticket. She tells the officer she hopes to never have him as a patient. The hospital fires her. Does she have a First Amendment claim? A wider lens on workplace law
Discipline/Discharge for Speech or Expression Is it protected by the First Amendment? Criticism Director of Solid Waste Dept. appeared at board meeting. During the public comment period, he criticized the decision to increase the solid waste disposal fee and to privatize waste collection. He stated, in part, that the decisions would harm the community and senior citizens. He also called the commissioner a liar and a big liar. He was terminated. Was his speech protected by the First Amendment? A wider lens on workplace law
Protected Speech or Expression Is there a First Amendment violation? Criticism Brown v. Greene County Com n (cont d) Did the Commission s interest as an employer outweigh Brown s interest in speech? Court denied County s Motion for Summary Judgment A wider lens on workplace law
Protected Speech or Expression Is it protected by the First Amendment? Criticism Firefighter campaigned for two city council candidates and lobbied for some council members, focusing his efforts on removing chief. He was also publicly critical of the city manager. Was his speech protected by the First Amendment? A wider lens on workplace law
Protected Speech or Expression Is it protected by the First Amendment? Criticism At a funeral for a fallen police officer, several officers in attendance turn their backs as the mayor passes by them and then again when he speaks at the services. The move was intended as a symbol of protest against decisions made by the mayor. Is this a form of protected expression? A wider lens on workplace law
Protected Speech or Expression Is it protected by the First Amendment? Pornography ( Outside Employment ) Deputy sheriffs engaged in consensual sexual activity that was recorded and made available to paying customers online. Their faces were shown without their knowledge. All activity was lawful. They were terminated after the County learned about the online videos from an anonymous complaint. Do they have a First Amendment claim? A wider lens on workplace law
Principles to Consider Does the speech involve a matter of public concern? Speaking as a citizen or employee? Look at content, form, context Does the employee s interests in speaking outweigh the government s interests in efficient public service? Is the speech a substantial reason for the discipline or discharge? Would the same decision have been made in the absence of protected conduct? Do you maintain a policy regarding employees conduct on social media? Do you maintain a policy regarding off-duty conduct that reflects poorly on the employer? A wider lens on workplace law
Arrests and criminal conduct Do not consider fact of arrest only disparate impact concern Review underlying conduct EEOC Guidance Individualized assessment (offense, job, business necessity) Consistency Possible Claims A wider lens on workplace law
Before you discipline or discharge . . . Is a pre-discipline or pre-termination hearing required (i.e. is there a property interest) ? Just cause or similar language Collective bargaining agreements Personnel policies, charters, ordinances, etc. Not required for at-will employees Is a name clearing hearing required (i.e. is there a liberty interest)? Usually for terminations, forced resignations, or serious discipline For stigmatizing reasons that are made public Required for any public employee, even at-will employee A wider lens on workplace law
QUESTIONS Ray Poole 904-356-8900 rpoole@constangy.com A wider lens on workplace law
