HB 1247 2022
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hb1247-00
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to medical marijuana public employee 2
protection; creating s. 112.219, F.S.; providing 3
definitions; prohibiting an employer from taking 4
adverse personnel action against an employee or a job 5
applicant who is a qualified patient using medical 6
marijuana; providing exceptions; requiring an employer 7
to provide written notice of the right of an employee 8
or job applicant to explain a positive marijuana t est 9
result within a specified timeframe; providing 10
procedures when an employee or job applicant tests 11
positive for marijuana; providing a cause of action 12
and damages; providing construction; providing an 13
effective date. 14
15
Be It Enacted by the Legislatur e of the State of Florida: 16
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Section 1. Section 112.219, Florida Statutes, is created 18
to read: 19
112.219 Medical Marijuana Public Employee Protection Act. — 20
(1) As used in this section, the term: 21
(a) "Adverse personnel action" means the refusal to hi re 22
or employ a qualified patient; the discharge, suspension, 23
transfer, or demotion of a qualified patient; the mandatory 24
retirement of a qualified patient; or the discrimination against 25
HB 1247 2022
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
a qualified patient with respect to compensation, terms, 26
conditions, or privileges of employment. 27
(b) "Confirmation test" has the same meaning as in s. 28
112.0455(5)(d). 29
(c) "Employee" has the same meaning as in s. 30
112.0455(5)(g). 31
(d) "Employer" means a state, regional, county, local, or 32
municipal government entity, whet her executive, judicial, or 33
legislative; an official, an officer, a department, a division, 34
a bureau, a commission, an authority, or a political subdivision 35
therein; or a public school, community college, or state 36
university that employs individuals for sa lary, wages, or other 37
remuneration. 38
(e) "Job applicant" has the same meaning as in s. 39
112.0455(5)(f). 40
(f) "Law enforcement agency" has the same meaning as in s. 41
908.102. 42
(g) "Physician certification" has the same meaning as in 43
s. 381.986(1). 44
(h) "Qualified patient" has the same meaning as in s. 45
381.986(1). 46
(i) "Undue hardship" means an action requiring significant 47
difficulty or expense, when considered in light of the following 48
factors: 49
1. The nature, cost, and duration of the accommodation. 50
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2. The overall financial resources of the employer. 51
3. The overall size of the business of the employer with 52
respect to the number of employees and the number, type, and 53
location of the employer's facilities. 54
4. The effect on expenses and resources or a ny other 55
impacts of such accommodation upon the operation of the 56
employer. 57
(2) An employer may not take adverse personnel action 58
against an employee or a job applicant who is a qualified 59
patient using medical marijuana consistent with s. 381.986. 60
However, an employer may take appropriate adverse personnel 61
action against an employee if the employer establishes by a 62
preponderance of the evidence that the lawful use of medical 63
marijuana is impairing the employee's ability to perform his or 64
her job responsibilities. For purposes of this subsection, an 65
employer may consider an employee's ability to perform his or 66
her job responsibilities to be impaired if the employee displays 67
specific articulable symptoms while working which decrease or 68
lessen the performance of his or her duties or tasks. 69
(3)(a) If an employer has a drug testing policy and an 70
employee or a job applicant tests positive for marijuana or its 71
metabolites, the employer must provide written notice within 5 72
business days after receipt of the positi ve test result to the 73
employee or job applicant of his or her right to provide an 74
explanation for the positive test result. 75
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(b) Within 5 business days after receipt of the written 76
notice, the employee or job applicant may submit information to 77
an employer explaining or contesting the positive test result or 78
may request a confirmation test at the expense of the employee 79
or job applicant. 80
(c) An employee or a job applicant may submit a physician 81
certification for medical marijuana or a medical marijuana u se 82
registry identification card as part of his or her explanation 83
for the positive test result. 84
(d) If an employee or a job applicant fails to provide a 85
satisfactory explanation for the positive test result, an 86
employer must verify the positive test resu lt with a 87
confirmation test, at the expense of the employer, before the 88
employer may take adverse personnel action against the employee 89
or job applicant. 90
(4)(a) Notwithstanding s. 381.986(15), an employee or a 91
job applicant who has been the subject of an adverse personnel 92
action in violation of this section may institute a civil action 93
in a court of competent jurisdiction for relief as set forth in 94
paragraph (c) within 180 days after the alleged violation. 95
(b) An employee or a job applicant may not reco ver in any 96
action brought under this subsection if the adverse personnel 97
action was predicated upon a ground other than the employee's or 98
job applicant's exercise of a right protected by this section. 99
(c) In any action brought under this subsection, the court 100
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may order any of the following: 101
1. An injunction restraining continued violation of this 102
section. 103
2. Reinstatement of the employee to the same position held 104
before the adverse personnel action, or to an equivalent 105
position. 106
3. Reinstatement of full fringe benefits and seniority 107
rights. 108
4. Compensation for lost wages, benefits, and other 109
remuneration. 110
5. Reasonable attorney fees and costs. 111
6. Any other compensatory damages allowable by general 112
law. 113
(5) This section does not: 114
(a) Prohibit an employer from taking adverse personnel 115
action against an employee for the possession or use of a 116
controlled substance, as defined in s. 893.02, during normal 117
business hours or require an employer to commit any act that 118
would cause the employer to viol ate federal law or that would 119
result in the loss of a federal contract or federal funding; 120
(b) Require a government medical assistance program or 121
private health insurer to reimburse a person for costs 122
associated with the use of medical marijuana; 123
(c) Require an employer to modify the job or working 124
conditions of a person who engages in the use of medical 125
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marijuana based on the reasonable business purposes of the 126
employer. However, notwithstanding s. 381.986(15) and except as 127
provided in paragraph (d), t he employer must attempt to make 128
reasonable accommodations for the medical needs of an employee 129
who engages in the use of medical marijuana if the employee 130
holds a valid medical marijuana use registry identification 131
card, unless the employer can demonstrat e that the accommodation 132
would pose a threat of harm or danger to persons or property, 133
impose an undue hardship on the employer, or prohibit an 134
employee from fulfilling his or her job responsibilities; or 135
(d) Prohibit a law enforcement agency from adopti ng 136
policies and procedures that preclude an employee from engaging 137
in the use of medical marijuana. 138
Section 2. This act shall take effect upon becoming a law. 139