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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 protections for public employees 2
who use medical marijuana as qualified patients; 3
creating s. 112.0556, F.S.; defining terms; 4
prohibiting a public employer from taking adverse 5
personnel action against an employee or a job 6
applicant for his or her use of medical marijuana if 7
the employee or job applicant is a qualified patient; 8
providing exceptions; requiring a public employer to 9
provide written notice of an employee's or a job 10
applicant's right to explain or contest a positive 11
marijuana test result within a specified timeframe; 12
providing procedures that apply when an employee or a 13
job applicant tests positive for marijuana; providing 14
a cause of action and damages; providing construction; 15
providing an effective date. 16
17
Be It Enacted by the Legislature of the State of Florida: 18
19
Section 1. Section 112.0556, Florida Statutes, is created 20
to read: 21
112.0556 Medical Marijuana Public Employee Protection 22
Act.— 23
(1) As used in this section, the term: 24
(a) "Adverse personnel action" means the refusal to hire 25
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or employ a qualified patient; the discharge, suspension, 26
transfer, or demotion of a qualified patient; the mandatory 27
retirement of a quali fied patient; or the discrimination against 28
a qualified patient with respect to compensation, terms, 29
conditions, or privileges of employment. 30
(b) "Job applicant" means a person who has applied for a 31
position with a public employer and has been offered em ployment 32
conditioned upon his or her passing a drug test. 33
(c) "Law enforcement agency" has the same meaning as in s. 34
908.102. 35
(d) "Physician certification" has the same meaning as in 36
s. 381.986(1). 37
(e) "Public employee" or "employee" means an employe e of a 38
public employer. 39
(f) "Public employer" or "employer" means a state, 40
regional, county, local, or municipal governmental entity, 41
whether executive, judicial, or legislative; an official, an 42
officer, a department, a division, a bureau, a commission, an 43
authority, or a political subdivision of such entity; or a 44
public school, a Florida College System institution, or a state 45
university, any of which employs persons for salary, wages, or 46
other remuneration. 47
(g) "Qualified patient" has the same meaning as in s. 48
381.986(1). 49
(h) "Undue hardship" means an action requiring significant 50
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difficulty or expense, when considered in light of all of the 51
following factors: 52
1. The nature, cost, and duration of the accommodation. 53
2. The overall financial resources of the public employer. 54
3. The overall size of the business of the public employer 55
with respect to the number of employees and the number, type, 56
and location of the public employer's facilities. 57
4. The effect on expenses and resources or any other 58
impacts of such accommodation upon the operation of the public 59
employer. 60
(2)(a) Except as provided in paragraph (b), a public 61
employer may not take adverse personnel action against an 62
employee or a job applicant for his or her use of medical 63
marijuana if the employee or job applicant is a qualified 64
patient under s. 381.986. 65
(b) A public employer may take appropriate adverse 66
personnel action against an employee if the public employer 67
establishes by a preponderance of the evidence that the lawful 68
use of medical marijuana is impairing the employee's ability to 69
perform his or her job duties or responsibilities. 70
(c) For purposes of this subsection, a public employer may 71
consider an employee's ability to perform his or her job duties 72
or responsibilities to be impaired if the employee displays 73
specific, articulable symptoms while working which adversely 74
affect the performance of his or her duties or responsibilities. 75
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(3)(a) If a public employer has a drug testing policy and 76
an employee or a job applica nt tests positive for marijuana or 77
its metabolites, the employer must provide to the employee or 78
job applicant written notice, within 5 business days after 79
receipt of the positive test result, of his or her right to 80
provide an explanation for or contest th e positive test result. 81
(b) Within 5 business days after receipt of the written 82
notice in paragraph (a), the employee or job applicant may 83
submit information to the public employer explaining or 84
contesting the positive test result or may request a 85
confirmation test, as defined in s. 112.0455(5), at the expense 86
of the employee or job applicant. 87
(c) An employee or a job applicant may submit a physician 88
certification for medical marijuana use or a medical marijuana 89
use registry identification card as part of his or her 90
explanation for the positive test result. 91
(d) If an employee or a job applicant fails to provide a 92
satisfactory explanation for the positive test result, the 93
public employer must verify the positive test result with a 94
confirmation test, at the expense of the employer, before the 95
employer may take adverse personnel action against the employee 96
or job applicant. 97
(4)(a) Notwithstanding s. 381.986(15), a public employee 98
or a job applicant who has been the subject of an adverse 99
personnel action in violation of this section may institute a 100
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civil action in a court of competent jurisdiction for relief as 101
set forth in paragraph (c) within 180 days after the alleged 102
violation. 103
(b) A public employee or a job applicant may not recover 104
in any action brought under this subsection if the adverse 105
personnel action was predicated upon a ground other than his or 106
her exercise of a right protected by this section. 107
(c) In any action brought under this subsection, the court 108
may order any of the following: 109
1. An injunction restraining continued violation of this 110
section. 111
2. Reinstatement of the public employee to the same 112
position held before the adverse personnel action, or to an 113
equivalent position. 114
3. Reinstatement of full fringe benefits and seniority 115
rights. 116
4. Compensation for lost wages, benefits, and other 117
remuneration. 118
5. Reasonable attorney fees and costs. 119
6. Any other compensatory damages allowed by general law. 120
(5) This section does not do any of the following: 121
(a) Prohibit a public emp loyer from taking adverse 122
personnel action against an employee for the possession or use 123
of a controlled substance, as defined in s. 893.02(4), during 124
normal business hours or require an employer to commit any act 125
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that would cause the employer to violate f ederal law or that 126
would result in the loss of a federal contract or federal 127
funding. 128
(b) Require a governmental medical assistance program or 129
private health insurer to reimburse a person for costs 130
associated with his or her use of medical marijuana. 131
(c) Require a public employer to modify the job or working 132
conditions of a person who engages in the use of medical 133
marijuana based on the reasonable business purposes of the 134
employer. However, notwithstanding s. 381.986(15) and except as 135
provided in paragraph (d), such employer must attempt to make 136
reasonable accommodations for the medical needs of an employee 137
who engages in the use of medical marijuana if the employee 138
holds a valid medical marijuana use registry identification 139
card, unless the employer can demonstrate that the accommodation 140
would pose a threat of harm or danger to persons or property, 141
impose an undue hardship on the employer, or prevent an employee 142
from fulfilling his or her job responsibilities. 143
(d) Prohibit a law enforcement agency from adopting 144
policies and procedures that preclude an employee from engaging 145
in the use of medical marijuana. 146
Section 2. This act shall take effect upon becoming a law. 147