Florida companies could still fire employees for marijuana use even if Amendment 2 passes
By Kate Irby, The Bradenton Herald | |
McClatchy-Tribune Information Services |
Across the nation, employees who have used medical marijuana legally under state laws have been fired when they fail drug tests. Employers are saying because marijuana is still illegal under federal law, they have the right to fire employees for using illicit substances, even if the state says it's legal.
still named marijuana an illicit substance.
Coats filed a discriminatory-termination lawsuit against the company in
Even if Amendment 2 is approved, Floridians might not go to jail for using medical marijuana, but they still could lose their jobs.
Steube said he wondered if employees taking medical marijuana on the job would not be held accountable for actions they caused because of negligence stemming from marijuana use.
For example, Pollara said, if a construction employee got into an accident while under the influence of medical marijuana he was legally taking, the language would not grant him immunity.
"Take situations like that and replace the word 'marijuana' with a drug like 'Percocet,' 'Vicodin,' etc.," Pollara said. "The immunity piece of the amendment does not cover gross negligence stemming from the use of marijuana."
"We are going to have a drug- and alcohol-free workplace," Neal said. "In fact, our insurance requires it."
He said his employees have to operate equipment and perform service calls, and he can't risk them being under the influence of drugs.
Neal is on the National Board of Drug Free America and has donated to opponents of Amendment 2. He said he believes the language on the ballot is too loosely termed, and that it would mean anyone would be able to get marijuana.
When asked if he worried that the passage of Amendment 2 could mean possible lawsuits from employees who take medical marijuana, Neal said, "I would be willing to take that risk."
"It can go either way," Chapman said. "There is not binding precedent."
Chapman said employees would have a legitimate case under the Americans with Disabilities Act, which states that employers cannot discriminate against employees for their disabilities, including for taking prescribed medication.
"The law can be interpreted differently depending on the court," Chapman said. "They may take into account the way the country is moving."
And that's not just courts. Although Neal was adamant about his company's drug-testing policies, others have begun backing off penalties for employees who test positive for marijuana use.
"I had an employee test positive for marijuana a little while ago, and he told me he'd gotten it second-hand, but was never high on the job, and he didn't seem high," Hann said. "So I kept him."
"If I think someone is under the influence at work I fire them," Murphy said. "But what they do on their own time is none of my business."
Representatives of
"I don't know if it's state law, but the stigma lifting might also have something to do with employers not being so strict on marijuana anymore," said
Simon said he's seen multiple employees test positive for marijuana, but employers ask if they can keep them on anyway. He said he advises companies to just keep their policies consistent between employees.
"You can't fire one but keep another for the same offense," Simon said. "Employers should stay flexible in terms of policies changing in the future. The courts might be taking the federal government argument now, but that can change."
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