Marci Britt, Attorney, Cotney Construction Law
For better or for worse and for a myriad of reasons both sound and half-baked, Americans’ attitudes toward marijuana have mellowed, numbering the days of continued governmental animus to cannabis. On November 8, 2016, Florida voters overwhelmingly approved a constitutional amendment to legalize the use of medical marijuana in Florida. With this, Florida joined 32 other states to date that have legalized the use of medical marijuana, while 10 of these states and the District of Columbia have also legalized recreational use of marijuana. These ever-changing state laws on marijuana legality, coupled with the resulting rise in marijuana use among the American workforce, have caused many companies to question and wonder what impact these changes have on them and whether these laws affect their ability to establish and enforce company policies and procedures on employee drug use, drug-testing, and workplace safety. Throwing another wrench into the works is the fact that, under federal law, marijuana is still illegal to possess, grow, distribute, or prescribe anywhere in the country, regardless of state laws that may legalize it, and this federal prohibition does not appear to be going anywhere anytime soon.
Against this backdrop, this article discusses a few of the biggest concerns facing employers in the roofing industry, and highlights things roofing contractors in Florida should consider when making decisions on how to best manage and minimize the risks to their business posed by medical marijuana legalization and usage. It’s important to note that laws legalizing marijuana differ vastly from state to state, and Florida’s laws contain several express provisions that militate and inform the decisions on the questions discussed below, but which are absent from and even contradictory to many other states’ laws on the issue. Thus, if any legal concerns arise, a qualified attorney in your relevant jurisdiction should be consulted.
The Americans with Disabilities Act (“ADA”) was enacted in 1990 to provide individuals with disabilities the same avenues for gaining and retaining meaningful employment that are available to people without disabilities. In short, the ADA requires employers with 15 or more employees to provide reasonable accommodations to individuals with disabilities that will allow them to perform the essential functions of their job, and prohibits employers from discriminating against individuals on the basis of their disability. The Florida Civil Rights Act (“FCRA”) imposes similar requirements on Florida employers.
Not surprisingly, one of the most common questions employers ask is whether they are required to provide accommodations for medical marijuana users under the ADA or the FCRA, for instance, by allowing the employee to use marijuana while working or on break to help alleviate his or her medical condition. Fortunately, the answer to this question is clear, at least for now, and Florida employers are off the hook. Florida’s medical marijuana statute, Section 381.986(15), Fla. Stat., expressly states that employers are not required to accommodate medical marijuana use or impairment in the workplace or on the jobsite. Additionally, courts have consistently held that employers are not required to accommodate workplace usage under the ADA because the ADA expressly states that a person using illegal drugs is not a qualified individual with a disability and since marijuana is still illegal under federal law, it is considered an illegal drug under the ADA.
A word of caution, however: although Florida employers are not required to accommodate on-the-job marijuana use by the ADA or FCRA, they may still be obligated to provide reasonable accommodations under these statutes for an employee’s underlying disability or condition (i.e., the reason they have a medical marijuana prescription). Thus, if the situation arises, roofing contractors should bear in mind their duty to engage in the interactive process with their employees to determine whether an accommodation can be provided other than marijuana use.
A related concern is whether employers in Florida can be subjected to discrimination claims under the ADA or FCRA if they refuse to hire, discipline, or terminate an employee because of his or her off-the-clock use of medical marijuana or even based solely on their status as a cardholder. Although the issue is cloudy in many states, the smoke is clear on this hazy topic for Florida employers: Florida’s medical marijuana statute specifically provides that it does not create a cause of action for discrimination or wrongful termination. And because the ADA does not protect medical marijuana usage, any discrimination claims brought under the ADA should fail as well, as long as the adverse action was based on the medical marijuana use and not on the employee’s underlying disability or condition for which the medical marijuana was prescribed. In contrast to Florida, at least nine other states prohibit discrimination based solely on an employee’s medical marijuana cardholder status or off-duty use, and courts in those states have consistently upheld requirements that employers must have evidence of on-the-job use or impairment before they can take disciplinary action against a medical marijuana cardholding employee. In other words, employees are protected as long as they are not showing up for work stoned or partaking on the job. A couple of recent federal court decisions are notable because neither found that the federal Drug-Free Workplace Act preempted the relevant state law, which means that even federal contractors must be aware of and follow state law with respect to marijuana use by employees.
In short, roofing contractors that work only in Florida should be in the clear on this issue, but companies that operate and have locations in other states, including federal contractors, should be mindful of these statutes and consult with counsel to ensure their employment policies are compliant across all states where they operate.
Most Florida roofing contractors likely incorporate some form of drug testing into their hiring and firing policies, given that Florida offers a discount on workers’ compensation insurance premiums for maintaining a compliant drug-free workplace program which requires a drug-testing component. Many companies choose to take it a step further by having “zero tolerance” policies, whereby employees who fail a single drug test are fired, regardless of whether the prohibited substance was obtained legally or whether it was used only while off duty and outside the workplace. Now that medical marijuana has been legalized in Florida, many in the roofing industry are left wondering if they can still enforce their drug-testing and zero tolerance policies as-is, or whether they need to start making exceptions for medical marijuana users.
In Florida, the short answer is yes. Florida’s medical marijuana statute expressly states that it does not limit the ability of employers to establish, continue, or enforce a drug-free workplace program. If companies want to continue receiving their workers’ comp discount, they should continue enforcing their drug-free workplace policies including the drug-testing component.
As for zero tolerance policies, Florida employers can continue to enforce these if they choose to do so or if they are required to do so for another reason, such as a workers’ comp policy requirement, a federal contract, or to comply with Department of Transportation regulations.
However, if companies are finding that they are losing too many good employees under their zero tolerance policy due to the employees’ off-duty, off-site lawful medical marijuana usage, the company can consider exempting medical marijuana users from their zero tolerance policy altogether. Another option would be to add in a “plus impairment” component to their zero tolerance policy, which requires evidence of on-the-job marijuana use or impairment in addition to a failed drug test in order for the employee to be subject to termination. If the company chooses to go this route, it should make sure to provide comprehensive training to supervisors on how to detect and document signs of marijuana impairment. Notably, several states, either by statute or court ruling, require employers to obtain and provide proof of on-duty impairment in addition to a positive drug test before an employee can be lawfully terminated. Roofing contractors who operate in a state other than Florida need to check the laws of that state to determine if it is a “plus impairment” state and if so, should revise their zero tolerance policies as necessary to comply with that state’s laws.
A final option to consider is using “last-chance” agreements under which an employee who has failed a drug test is allowed to remain employed for a set period of time with the understanding that if the employee does not comply with all terms of the agreement throughout the prescribed time period, he or she will then be subject to immediate termination. Provisions commonly included in last-chance agreements include requirements for the employee to refrain from all prohibited drug use throughout the agreement period, to submit to periodic additional drug tests, and/or to attend substance abuse counseling or rehab.
It goes without saying that the roofing industry is an inherently dangerous profession, such that adding marijuana into the mix raises serious concerns about the safety of employees as well as third parties. Although the OSHA Act does not specifically prohibit drug use or impairment on the job site, it does require employers to maintain a place of employment “free from recognized hazards.” So what is a “recognized hazard” in regards to medical marijuana usage? Employees tied off on a steep-slope roof while high as a kite? Employees operating a crane, saw, or other heavy machinery while impaired? There would probably be little disagreement that these situations would present a recognized hazard. But what about a sales manager or office assistant working solo at their desk after taking prescribed medical marijuana pills on their way in to work? Perhaps this situation is a closer call. Although there are no sure answers on where OSHA would draw the line, one thing is for sure: OSHA rarely entertains excuses from employers, and any leniency in enforcing a workplace safety protocol to accommodate a medical marijuana user may be all that’s needed to earn an employer an OSHA citation for a safety violation.
Thus, roofing contractors who may be considering revising their policies to accommodate and permit legal, off-duty medical marijuana use by employees should carefully consider all relevant safety rules and regulations, the duties performed by each individual employee, the risks of causing or exacerbating a workplace accident, and any and all other safety concerns before deciding whether to permit such usage by some or all employees. Employers should get in the habit of periodically reviewing their company policies, ideally at least once a year, to ensure they are in full compliance with the latest legal requirements governing the operation of their business and should provide comprehensive employee education and management training on those policies.
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