FL Court Limits Employer Actions for Off-Site Marijuana Use
A Florida court recently held that an employer violated the Florida Civil Rights Act (FCRA) when it suspended an employee for using medical marijuana outside of work. The decision in Giambrone v. Hillsborough County raises questions about Florida employers’ workplace drug testing policies.
The employee worked for Hillsborough County as an emergency medical technician (EMT). After testing positive for marijuana during a random drug screening, he explained to the county that he was lawfully prescribed medical marijuana for anxiety and severe insomnia. Significantly, the employee had never possessed marijuana at work, never been under the influence at work, and never had any problems with his work performance. Despite this, the county suspended him for the failed drug test.
The employee sued the county, arguing that it failed to accommodate his disabilities. The county maintained that the suspension was justified because marijuana remains federally illegal and the employee failed a drug test. The county also argued that employee failed to seek accommodations because he did not disclose his prescription until after the drug test.
The court rejected the county’s arguments and ruled in favor of the employee. The court acknowledged that marijuana remains illegal under federal law and agreed that employers may forbid marijuana use in the workplace. But by suspending the employee for off-site use of marijuana to treat his disabilities—treatment which complied with state law and did not intrude into the workplace—the court ruled the county violated the employee’s rights.
Notably, it did not matter that the employee failed to seek accommodations in advance. As the court explained, he had no reason to ask. He was not attempting to use marijuana at work, and it was not affecting his job performance.
The court also distinguished another case, Ortiz v. Department of Corrections, where a correctional officer was lawfully terminated for using medical marijuana. In Ortiz, the officer was required to carry a firearm—a felony for marijuana users. Florida correctional officers cannot remain certified if they commit a state or federal felony, even if they are never charged with a crime. But there is no such requirement for EMTs. Indeed, the Florida Department of Health determined that the employee fully complied with the conditions of his EMT license. Accordingly, the court held the county violated the FCRA when it refused to accept the employee’s medical marijuana card as justification for the positive drug test.
It is unclear whether the county will appeal the ruling. Although this is a trial court decision that does not create binding precedent, it may suggest how other judges will evaluate the issue when presented with cases involving marijuana use outside of work. Even though medical marijuana remains federally illegal, Florida employers should carefully review their accommodation policies and consider whether they account for rights granted by state law.
We will continue to monitor this case and any similar decisions. Please contact Wesley Thorp, Jason Pill or any member of Phelps’ labor and employment team if you have any questions, or if you need advice or guidance.
