Florida Government Agencies Couldn’t Fire Workers For Off-Duty Medical Marijuana Use Under New Bill

New legislation in Florida would protect medical marijuana patients from discrimination in government jobs by preventing agencies from punishing public workers based solely on their legal use of cannabis.

The bill, HB 83, was introduced on Friday by Rep. Mitch Rosenwald (D). It would bar public employers from taking actions such as firing workers, refusing to hire a qualified applicant or demoting employees based on their medical marijuana use or registration.

To be clear, Rosenwald’s proposal is not intended to protect workplace impairment. Agencies could still take disciplinary action against people who are high on the job.

“A public employer may consider an employee’s ability to perform his or her job duties or responsibilities to be impaired if the employee displays specific, articulable symptoms while working which adversely affect the performance of his or her duties or responsibilities,” the legislation says.

Law enforcement agencies could also continue to restrict even off-duty medical marijuana use by police officers.

Public employers would also need to give written notice to employees and applicants informing them of their right to explain or contest a positive marijuana test result within a five-day period after receiving the result.

A separate bill introduced this time last year, the Public Employee Protection Act (SB 166), similarly would would have protected state employees against “adverse employment action” for legally using medical marijuana. That measure was sponsored by Democratic state Sen. Tina Polsky.

Both measures were partially inspired by the firing of a Florida Department of Corrections worker, Velez Ortiz, following a positive test for THC in 2021. Ortiz, who had a doctor’s recommendation to use cannabis to treat post-traumatic stress disorder, sued over the firing, but a state appeals court ultimately upheld his termination. Early last year, Florida’s Supreme Court declined to review the case.

In a separate case, a state judge sided last month with a paramedic and medical marijuana patient who was suspended by a county fire and rescue department in 2019 over a positive cannabis test.

The court ruled that the county cannot discriminate against workers with medical marijuana cards who test positive for the drug and must provide reasonable accommodations—so long as there’s no evidence that the employee was high at work or consumed the cannabis on county property or in a county vehicle.

Judge Melissa Polo wrote in the decision that the “undisputed facts” of the case established that the paramedic had anxiety and a sleep disorder that “significantly impacts his day-to-day life when unmedicated.” The definition of disability in the Florida Civil Rights Act, she added, includes both physical and mental ailments, and Florida’s 2016 constitutional amendment legalizing medical marijuana states that “qualified” patients are allowed to use medical marijuana away from work and that employers are required to make accommodations.

While HB 83’s provisions, if the bill becomes law, would have made clearer that workers like paramedics could use medical marijuana off duty, it’s unlikely the measure would have prevented the firing of Ortiz, the corrections worker, who carried a gun while on the job.

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Currently about half of states where medical marijuana is legal have laws that protect employees from workplace discrimination related solely to their use of cannabis.

Changes to public-employee drug policies are also unfolding at the local level, for example in Bernalillo County, New Mexico, where Albuquerque is located. Commissioners there recently approved policy details of a plan to stop testing and punishing most government employees for off-hours marijuana use.

The change would include public responders such as firefighters and emergency dispatchers, but it would not extend protections for off-duty cannabis use to workers with commercial driver’s licenses or who are required to carry a firearm on the job.

Separately, local officials in Maryland’s most populous county recently announced they’ll be loosening marijuana policies for would-be police officers in an effort to boost recruitment amid a staffing shortage.

In New Jersey last year, meanwhile, the state Civil Service Commission mandated that the Jersey City Police Department reinstate three officers who were terminated over their off-duty cannabis use. Attorney General Matt Platkin (D) had previously affirmed in a memo that the state’s legalization law permitted officers to use marijuana when off the job.

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Photo courtesy of Chris Wallis // Side Pocket Images.