Dan Schwartz of the Connecticut Employment Law blog posted yesterday about an interesting medical marijuana case in Connecticut. For the first time, a Connecticut court ruled that an employer could not refuse to hire an applicant simply because she was a medical marijuana user, despite the employer’s drug-free workplace program. This applicant, who used medical marijuana for PTSD, had her offer revoked after she tested positive for marijuana on the pre-employment drug screen. She then sued for discrimination. In ruling for the applicant, the court focused on the anti-discrimination provision in Connecticut’s medical marijuana law:
[U]nless required by federal law or required to obtain funding: . . . (3) No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient or primary caregiver under sections 21a-408 to 21a-408n, inclusive. Nothing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.
Conn. Gen. Stat. § 21a-408p(b)(3) (emphasis added).
Does this decision have any impact on Florida employers?
No, for at least a couple of reasons. First, as you probably already know, Connecticut decisions are not binding on Florida courts. More importantly, the Florida medical marijuana statute is much more employer-friendly than the Connecticut statute. Compare this provision of the Florida statute with the Connecticut provision referenced above:
APPLICABILITY.—This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination. Marijuana, as defined in this section, is not reimbursable under chapter 440.
Fla. Stat. §381.986(15) (emphasis added).
Under the Florida statute, I think this applicant’s claim would fail because employers are specifically permitted to enforce drug-free workplace programs. Does this mean you could revoke the offer scot-free (is anything ever scot-free in employment law these days?!)? Not necessarily. I suspect it is only a matter of time before someone challenges this type of decision on ADA grounds, and it will be interesting to see how that shakes out. I still think the employer would prevail in Florida, though, barring some misstep like commenting on the actual disability, instead of focusing on the drug-free workplace.
Advice for Florida Employers
If you want to be in the best position to refuse to hire a medical marijuana user, make sure you have a solid drug-free workplace program that clearly prohibits the use of marijuana, including medical marijuana. Once you have this program, follow it, and follow it consistently! If the policy says you do pre-employment testing, do it. If it says you do random testing, do it! If it says zero tolerance, handle positive tests the same way for all employees or applicants – do not pick and choose (and don’t even THINK about excusing the positive test for the “one time” weekend/recreational user, but not for the medical marijuana card carrier!!).