Medical Marijuana in the Workplace – déjà vu all over again!
This is a big one, so we’ll get right to it:
Most of you are doubtless familiar with the holding in Giambrone v. Hillsborough Cnty., 2024 Fla. Cir. LEXIS 6156, 2024 LX 293860, if not the case itself: in December 2024, the Giambrone Court held that Fla. Const. Art. X, § 29 not only permitted the use of medical cannabis in Florida but also required employers to accommodate such use based upon certain factors.
“Accommodate” might be a strong word here. It’s appropriate as a term-of-art, in that it refers to an employer’s duty to modify certain workplace policies and procedures to allow otherwise qualified individuals with disabilities to perform the primary duties of any given position. But in the specific context of medical cannabis – even under Giambrone’s relatively generous standard – “accommodate” really only ever meant “not punish.”
The Hillsborough County trial court in Giambrone explicitly still allowed employers to discipline – even terminate – employees for using medical cannabis in or around their employer’s premises, for smelling like cannabis, or even for appearing suspiciously relaxed whilst on-the-clock. So, despite quite a few alarmist headlines to the contrary, Giambrone never required employers to get (or be) high at work. The Giambrone trial court simply prohibited employers from disciplining employees for using medical cannabis in accordance with a Florida cannabis registered prescribing physician’s instructions in the privacy of their own homes, thereby codifying the “don’t ask don’t tell / reasonable suspicion testing” policies currently applied by the majority of business owners.
We never shy away from editorializing, and we aren’t going to start now: the only people who objected to the Giambrone standard were likely mislead by alarmist and mostly misleading headlines misrepresenting the Hillsborough County trial court’s actual holding. Because, despite the media frenzy, Giambrone’s holding was both fairly limited and allowed for a patient using cannabis for medical reasons to do so in their own home without the ever present threat of termination.
No employer wants to lose a valuable and competent employee over their use of a prescription medication. Are we really going to pretend that cannabis is more dangerous than, say, Oxycodone, a medication which killed 800,000+ people between 1999 and 2023, which employees are legally entitled to be under the influence of while on-the-clock under the same laws that, as of last month, now allow employers to discipline employees for off-the-clock prescription cannabis use? Watch the film “Thank you for smoking” to get an idea about the power of lobbyists to get an idea of some of the arbitrary lines at issue here.
On that same note, no employer – indeed, no good and moral person – wants an employee to lose workers’ comp eligibility from an accident that occurred while they were stone-cold sober, just because medical cannabis is detectable via drug screening much longer than, say, alcohol. Here’s what we mean: if an employee used medical cannabis, in the privacy of their own home and in strict accordance with their physician’s instructions, the evening before they were injured at the workplace, the subsequent toxicity report revealing cannabis in their system would disqualify them from coverage under worker’s comp.
Now, let’s imagine that, instead of using medical cannabis, this same employee had opted to self-medicate with, say, copious amounts of Bacardi 151 the evening before they were injured at the workplace but were still under the legal limit of legal intoxication…… well, in that case, the ALJ would likely award any disputed benefit. An interpretation of the law requiring an employer to accommodate employees’ use of prescription opiates and over-the-counter hard liquor (albeit after hours, thankfully – and hopefully!) while failing to protect employees’ lawful use of medical cannabis (strictly after hours!) seems to be a moral judgment as compared to an evidence based judgment.
Florida’s citizens voted in favor of allowing medical cannabis under Fla. Const. Art. X, §29 by an overwhelming margin of 71% back in 2016. Since then, Florida physicians have issued some 440,000+ prescriptions for medical cannabis, assisting untold numbers of Floridians to wean themselves off of dangerous opiates. Unfortunately, thanks to aggressive lobbying from pharmaceutical companies, the Florida Judiciary, Florida politicians, and law enforcement organizations have remained inexplicably hostile to the very concept of medical cannabis altogether. The ages of individuals who have medical cannabis prescriptions might surprise you as the most common patient demographic falls between 35 and 45 years old, with patients over 55 growing rapidly, especially in The Villages.
The Second District Court of appeal reversed the “win” for Mr. Giambrone, a firefighter-paramedic, who fought for himself and other employees with chronic conditions who functioned well in society through the prescribed and monitored use of medical cannabis; that loss means that even though medical cannabis remains technically legal, users may still be fired from their jobs, or even arrested by the police, should they be caught actually using their legally prescribed medical cannabis.
This is a pretty standard backdoor approach to manipulating the law, and it’s used more often than you might think. For instance, did you know that you have an absolute right to refuse a breathalyzer test during a traffic stop? It’s true! The police cannot compel you to submit to a breathalyzer test… but if you do refuse the test, you will be arrested on the spot, your license will be automatically suspended for no less than a year, your refusal will be used as evidence against you in the subsequent DUI proceeding, and as of 2025, you can be criminally charged under Fla. Stat. §316.1939 for your failure to comply with the arresting officer’s demand. But despite all this, if you find yourself being asked to submit to a breathalyzer test during a traffic stop, and you ask the officer “do I have to?”, they’ll assure you “Absolutely not, this is a free country after all” even as their hand drifts towards their handcuffs in anticipation of you invoking your Constitutional right to say “No”.
With the Second District Court of Appeals having overturned the Hillsborough County trial court’s decision in Giambrone, Florida residents find themselves in a similarly Kafkaesque position: you have the right to be prescribed medical cannabis, and you have the right to acquire and use medical cannabis within the confines of your home… but if you follow through with your doctor’s plan for you and use medical cannabis for your chronic condition (remember, the majority of users are not college students but people in mid-life!) your employer is free to fire you, and law enforcement is free to arrest you on federal charges. This provides Florida legislators with plausible deniability, while still allowing them to enforce a de facto ban on medical cannabis. Because if using medical cannabis renders you unemployable and ineligible for workers’ comp coverage, what good is a constitutional “right” to use it?
All of these factors coalesced to make Giambrone’s overturning inevitable. But to end on a positive note, it was heartening to read the original Giambrone Court’s analysis and realize that there are judges out there still doing the sort of scholarly-minded substantive analysis that the judiciary needs to be known for.
Sure, certain outcomes were likely predetermined – nobody believed Justice Scalia would actually consider ruling in favor of gay marriage – but at least we could count on him to craft an infuriatingly effective defense of his position, no matter how much we would ultimately disagree with him. These days, that “effective defense” tends to be elusive.
And there you have it! The takeaway is the same as the headline: the State of Florida no longer requires employers to accommodate medical cannabis. If you’re wondering what this means to you – or if you’d like to hear our opinions on why a “reasonable suspicion” testing policy is still superior to a random screening policy, even post-Giambrone – we’re happy to help!
FYI, Mr. Giambrone and his attorney have said to the media their plan was to appeal the decision of the Second District Court of Appeals. We will keep you posted.