While recreational marijuana use is not legal in Florida, medicinal marijuana use is. And with that comes a host of legal questions for local companies.
We asked attorney Michelle Lee Flores with Akerman LLP, how the legalization of medicinal marijuana changes companies’ drug testing policies for job applicants.
"Well they need to educate themselves on what the law is or hire a lawyer that can help them navigate that. And they need to be aware that if there's a positive test for marijuana, it may be medicinal. And what does medicinal mean? It may be that someone is utilizing that for some type of medical condition or disability. And that throws up a flag that what you might need to do is engage in, what they call, an interactive process. Finding out if someone is utilizing cannabis or marijuana to help them with some medical condition and if so, is the company/employer, prospective employer going to accommodate that?", says Lee Flores.
And if a prospective employee does use medicinal marijuana, can the employer choose not to hire them, based on that alone.
"It's a case by case basis. For example, if it's a safety sensitive position, someone's driving a vehicle, they could say "we cannot accommodate that". If they adopt a zero tolerance policy for drugs, they could also say " they cannot accommodate". But what they need to do is still engage in the interactive process, have that dialogue communicate with the perspective employee and find out if there is an alternative medicine that's legal under the federal law because remember it's still illegal under the federal laws for any purpose. And if there is an alternative, will you take that and perhaps then they are not taking cannabis anymore and then you hire there," says Lee Flores.
If you’re an employer and you need to have this conversation with a prospective employee, what’s the proper way to do it?
"One, educate themselves beforehand. I don't think a lawyer present is a good idea. What I do think though, is thinking about first of all, now what are your policies, how are you communicating those policies, what the testing policy is? And that you will engage in the interactive process and proceed the conversation with this and it might be awkward, however we want to engage in this process and see if we can accommodate on what might be medicinal use," says Lee Flores.
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