Florida has joined the growing number of states that regulate and permit the medical use of marijuana after more than 6.5 million Floridians voted to approve Amendment 2. As a result, the Florida Constitution now includes the right for people with one or more of the following Debilitating Medical Conditions to use marijuana if such use has been certified by a physician:

  • Cancer;
  • Epilepsy;
  • Glaucoma;
  • Positive status for human immunodeficiency virus (HIV);
  • Acquired immune deficiency syndrome (AIDS);
  • Post‐traumatic stress disorder (PTSD);
  • Amyotrophic lateral sclerosis (ALS or Lou Gehrig’s disease);
  • Crohn’s disease;
  • Parkinson’s disease;
  • Multiple sclerosis; or
  • Other debilitating medical conditions of the same kind or class as or comparable to those enumerated.

The use of medical marijuana requires written certification from a licensed physician that in the physician’s professional opinion, the patient suffers from a debilitating medical condition and that the medical use of marijuana would likely outweigh potential health risks. The certification, which must state the recommended duration of use, may only be provided after the physician has conducted a physical examination and fully assessed the patient’s medical history.

Amendment 2 becomes effective on January 3, 2017. (An amendment without a specific effective date becomes effective on the first Tuesday after the first Monday in January following the election.) As of the effective date, the Florida Department of Health has six months to issue procedural regulations and nine months to begin issuing identification cards and registrations to those who qualify for the medical use of marijuana.

The extent to which Amendment 2 may affect employers is uncertain. However, there are limits to how far employers must go to accommodate the medical use of marijuana. For example, Amendment 2 expressly states that it does not require any accommodation for the on‐site medical use of marijuana in any place of employment or for smoking medical marijuana in any public place. It also doesn’t require health insurance providers to reimburse expenses related to the medical use of marijuana.

Perhaps the most significant limitation of Amendment 2 comes from the fact that marijuana is an illegal drug under federal law, regardless of what the Florida Constitution provides. This is important because the Americans with Disabilities Act does not cover individuals who are currently using drugs that are illegal under federal law. As a result, the protections afforded to qualified individuals with disabilities under the ADA do not apply to the use of medical marijuana even if it is legal under Amendment 2.

Another aspect of the state vs. federal distinction may limit the impact of Amendment 2 even more. Since 2013, the U.S. Department of Justice’s policy has been to defer the right to challenge state marijuana legalization laws. This voluntary hands-off policy may change under the new administration.

Despite these limitations and uncertainties, employers can start the process of adapting to Amendment 2 by updating handbooks and policies to clarify that the use of any illegal drug, including the medical use of marijuana pursuant to a physician’s certification, is strictly prohibited. Until procedural regulations are issued, employers should proceed cautiously when it comes to medical marijuana.

Since the likelihood of inadvertent violations can increase dramatically when the law changes, employers should consider Employment Practices Liability Insurance to protect against the financial consequences associated with employment-related claims. Please contact us if you would like to learn more about protecting your business with employment practices liability insurance.

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