Florida companies could still fire employees for marijuana use even if Amendment 2 passes

Sept. 28--MANATEE -- Even if medical marijuana is legalized in Florida in November, those looking to use cannabis to treat diseases might want to seek advice not only from their doctors but also from their employers.

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.

Brandon Coats, a quadriplegic Colorado man, was fired from his job in customer service at Dish Network for using medical marijuana to treat his muscle spasms, which was legal under state law. Coats said he only used marijuana in his personal time and Dish never alleged that it affected his job performance. But after a drug test found marijuana in his system, the company fired him on grounds that federal law

still named marijuana an illicit substance.

Coats filed a discriminatory-termination lawsuit against the company in August 2011, but two subsequent court rulings have sided with Dish, saying the company's citation of federal law is legitimate. Coats is still appealing those decisions.

Even if Amendment 2 is approved, Floridians might not go to jail for using medical marijuana, but they still could lose their jobs.

Manatee County Sheriff Brad Steube, a vocal opponent of Amendment 2, also questioned how the amendment would affect insurance liability. The amendment states: "The medical use of marijuana by a qualifying patient or personal caregiver is not subject to criminal or civil liability or sanctions under Florida law, except as provided in this section."

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.

Ben Pollara, the campaign manager in support of Amendment 2 for United for Care, said Steube is reading the immunity part of the amendment too broadly.

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."

Pat Neal, the leader of local development company Neal Communities, said he still plans to fire employees who test positive for marijuana if Amendment 2 passes. Neal Communities employees are tested upon hire and can be tested randomly.

"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."

Jason Chapman, a Sarasota attorney who specializes in wrongful-termination cases, said he would be comfortable taking a case like that on for a fired employee.

"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.

Russell Hann, president of Hann Powerboats, said he's fine with employees taking medical marijuana in their personal time as long as they didn't show up to work under the influence. Employees of Hann Powerboats are drug tested whenever they get into an accident.

"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."

Sean Murphy, owner of local restaurants Beach Bistro and Eat Here, took a view similar to Hann's and said he wouldn't have a problem with an employee using medical marijuana outside of work. He said he doesn't drug test employees because he believes it's a privacy violation, but if employees show up to work high, he knows it.

"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 TriNet, a company with a location in Lakewood Ranch that provides outsourced human-resources services to small businesses, said they've seen many companies trending that way now.

"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 Mike Simon</person>, senior employee-relations consultant at TriNet.

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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