Last November, more than 72% of voting Floridians said yes to medical marijuana for those who are suffering terrible pain as a result of debilitating and life altering diseases such as cancer, Alzheimer’s, just to name a few. However, ever since then the elected leaders of the Sunshine State have had difficulty coming to grips with what the people decided at the ballot box. Just yesterday, the Florida legislature grappled with the issue of how medical marijuana should be ingested (obviously none of them have ever used pot before). One proposal in the bill is that doctors give a formal prescription rather than a recommendation for medical marijuana. This seems harmless on the surface until you realize that no doctor is ever going to write a prescription for something that remains federally illegal, and doctors who “prescribe” medicinal cannabis can lose their FDA licenses. One of the many problems here is that there is a disconnect between federal and state law. It’s great you can smoke marijuana in Massachusetts and use it for medicinal purposes in Florida but what about the federal consequences for doing so? For instance, medical marijuana sounds compassionate and everything but what about the patient who is “prescribed” it but has to pay for it through a federal insurance program like Medicare or Medicaid? What happens then?
The problem becomes even more complex if you turn to the workplace.
Employers in states in which marijuana has been legalized must first determine whether their workplace is regulated by The Drug Free Workplace Act (the Act). The Act requires that all federal grant recipients and federal contractors adopt a zero tolerance policy at their workplaces and certify to the federal government that their workplaces are drug free. In addition to this certification, these employers generally must:
- Develop and publish for employees a written policy and ensure that employees read and consent to the policy as a condition of employment;
- Initiate awareness programs to educate employees about the dangers of drug abuse, the company’s drug workplace policy, any available drug counseling, rehabilitation and employee assistance programs, and penalties that may be imposed on employees for drug abuse violations;
- Require that all employees notify the employer or contractor within five days of any conviction for a drug offense in the workplace; and
- Make an ongoing good faith effort to maintain a drug-free workplace.
The Act does not require that employers conduct mandatory drug tests.
If an employer is not required to comply with the Act, such employer can still institute a zero tolerance policy for those workers in “safety-sensitive” positions. A “safety-sensitive” position, generally, is one in which an employee is responsible for the safety of herself or others. Positions that fit into this designation would include those involving driving or the use of machinery, among many others. If such a position requires a commercial driver’s license (CDL), then the employer is mandated to abide by the Omnibus Transportation Employee Safety Act of 1991, which requires that all employers drug test employees whose duties require a CDL.
You can see where this gets really tricky and murky real quick. The law really hasn’t caught up with the new situation either. So, if someone comes to my office and complains of wrongful termination and the matter relates to what I’ve described in this post, what to do? Where to turn? Well, this is actually when it’s fun to be a lawyer. You get to do some real work and figure out how the spirit and the substnac