Guest post by Robert C. Shearman, Esquire, Henderson Franklin, Starnes & Holt, P.A. (Fort Myers):
While the infrastructure and implementing regulations are ramping up for the new law and the industry it will spawn, employers may be well served to use the time now to survey their approach to the law.
Will the new law gut employers’ drug-free workplace policies? Will employers be required to grant accommodations to prescription card carrying users (e.g. provide a location for such employees to light up during the work day?). Will employees be able to successfully sue employers who terminate them for failing a drug test due to a positive test for medical marijuana use?
State vs. Federal Law
Marijuana still remains illegal under federal law. The Controlled Substances Act (CSA) classifies marijuana as a Schedule 1 drug, i.e. just as “illegal” as heroin in that sense under federal law. The U.S. Department of Justice has essentially decided not to “enforce” the CSA against bona fide medical marijuana users in states legalizing it for that purpose – but the substance itself remains illegal, technically speaking, under federal law.
As a result, in several court cases in other states with laws comparable to Florida’s, the courts have upheld an employer’s right to enforce its drug free workplace policy , even if it results in termination of employment, because marijuana is illegal under federal law – even though the use was legal under the state’s law.
Moreover, since the Florida law specifically provides no duty to accommodate in places of employment, it’s hard to imagine that any claim under the Americans with Disabilities Act could/would prevail.
The Florida Constitutional Amendment leans toward “employer-friendly” as judged against the various types of such laws implemented in other states thus far. The law, in its present form, will allow a Florida employer significant discretion as to how it wishes to fashion its substance abuse or drug-free workplace policy. Which direction a company wishes to go may also depend on the safety-sensitive nature of the work. For example, a construction company may deem it wise to continue with its zero tolerance policy, where an entirely white-collar office enterprise may feel differently.
Join us in Fort Lauderdale
If you would like to learn more, join me on Friday, November 10, 2017, for the Florida Law Alliance Fall Employment Law Conference at the Royal Sonesta Fort Lauderdale Beach Hotel.
Continuing Education
The Society for Human Resource Management (SHRM) has approved this course for 5.0 PDCs. HRCI has also approved this course for 5.0 Recertification Credits (General).The course has been approved for Continuing education credits are available.
The Florida Bar has also approved this course for 5.0 General CLE credits and/or 5.0 Labor and Employment Law Certification credits.
Registration
Cost is $50/per person and includes a breakfast, lunch, valet parking and seminar materials.
Click here to register online.
Click here to download the seminar brochure.
If you have any questions, please contact me at robert.shearman@henlaw.com or by phone at 239-344-1160. You may also contact Gail Lamarche, Henderson Franklin’s Director of Marketing and Business Development at gail.lamarche@henlaw.com or by phone at 239-344-1186.
About the Author
Robert C. Shearman represents public and private entities with respect to constitutional claims, wrongful termination, discrimination, and harassment matters, and injury cases. He also represents law enforcement agencies and officers, and real estate professionals in civil litigation and administrative actions. Robert is Florida Bar Board Certified in Civil Trial Law and a Florida Supreme Court Certified Civil Mediator.
Robert frequently provides preventative harassment and discrimination training for employers and lectures on employment law, real estate and tort litigation. He has been recognized by Florida Super Lawyers® magazine (2012-2017) and Florida Trend Magazine’s Legal Elite (2013, 2016-2017) for his work in employment litigation defense. Robert was also selected to Best Lawyers in America® in 2017. Bob is AV-rated by Martindale-Hubbell.
Robert has served on the Southwest Florida Seminole Booster Club Board for several years and is co-chair of the annual fishing tournament to raise money for scholarships. He is an alumnus of Leadership Lee County, a former Big Brother and past trustee of the Calusa Nature Center and Planetarium. Robert also serves on the United Way of Lee, Hendry, Glades and Okeechobee Counties Board of Directors.
