Florida Senate - 2021 SB 1820
By Senator Powell
30-01587A-21 20211820__
1 A bill to be entitled
2 An act relating to medical use of marijuana; creating
3 s. 112.219, F.S.; defining terms; prohibiting an
4 employer from taking adverse personnel action against
5 an employee or a job applicant who is a qualified
6 patient for his or her lawful use of medical
7 marijuana; providing exceptions; requiring an employer
8 to provide written notice of an employee’s or job
9 applicant’s right to explain a positive marijuana test
10 result within a specified timeframe; providing
11 procedures for when an employee or job applicant tests
12 positive for marijuana; providing for a cause of
13 action and damages; providing construction; amending
14 s. 381.986, F.S.; deleting a requirement that certain
15 qualified physician examinations and assessments of a
16 qualified patient be conducted while physically
17 present in the same room as the qualified patient;
18 authorizing certain research institutes and state
19 universities to grow marijuana for research purposes;
20 authorizing certain third-party entities to grow,
21 possess, test, transport, and lawfully dispose of
22 marijuana for research purposes; providing that
23 certain nonresident qualified patient or caregiver
24 identification cards have the same force and effect as
25 those issued in this state; specifying requirements
26 for a nonresident patient or caregiver to be
27 registered in the medical marijuana use registry;
28 requiring the Department of Health to immediately
29 register a patient or caregiver in the registry if
30 they meet such requirements; requiring the department
31 to revoke the registration under certain
32 circumstances; requiring the department to adopt rules
33 by a specified date; creating s. 381.9885, F.S.;
34 establishing the Medical Marijuana Testing Advisory
35 Council within the department for a specified purpose;
36 providing for membership, meetings, and duties of the
37 council; requiring the council to submit annual
38 reports to the Governor and the Legislature by a
39 specified date; amending s. 456.47, F.S.; authorizing
40 telehealth providers to prescribe controlled
41 substances to qualified patients through telehealth
42 under certain circumstances; providing an effective
43 date.
44
45 Be It Enacted by the Legislature of the State of Florida:
46
47 Section 1. Section 112.219, Florida Statutes, is created to
48 read:
49 112.219 Medical Marijuana Public Employee Protection Act.—
50 (1) As used in this section, the term:
51 (a) “Adverse personnel action” means the refusal to hire or
52 employ a qualified patient; the discharge, suspension, transfer,
53 or demotion of a qualified patient; the mandatory retirement of
54 a qualified patient; or discrimination against a qualified
55 patient with respect to compensation, terms, conditions, or
56 privileges of employment.
57 (b) “Employee” has the same meaning as in s.
58 112.0455(5)(g).
59 (c) “Employer” means a state, regional, county, local, or
60 municipal government entity, whether executive, judicial, or
61 legislative; an official, an officer, a department, a division,
62 a bureau, a commission, an authority, or a political subdivision
63 thereof; or a public school, community college, or state
64 university that employs individuals for salary, wages, or other
65 remuneration.
66 (d) “Job applicant” has the same meaning as in s.
67 112.0455(5)(f).
68 (e) “Law enforcement agency” has the same meaning as in s.
69 908.102.
70 (f) “Physician certification” has the same meaning as in s.
71 381.986.
72 (g) “Qualified patient” has the same meaning as in s.
73 381.986.
74 (h) “Undue hardship” means an action that involves
75 significant difficulty or expense, when considered in light of
76 the following factors:
77 1. The nature, cost, and duration of the accommodation.
78 2. The overall financial resources of the employer.
79 3. The overall size of the employer’s business with respect
80 to the number of employees and the number, type, and location of
81 the employer’s facilities.
82 4. The effect on expenses and resources or any other
83 impacts of such accommodation upon the operation of the
84 employer’s business.
85 (2) An employer may not take adverse personnel action
86 against an employee or a job applicant who is a qualified
87 patient for his or her use of medical marijuana consistent with
88 s. 381.986. However, an employer may take appropriate adverse
89 personnel action against an employee if the employer establishes
90 by a preponderance of the evidence that the lawful use of
91 medical marijuana is impairing the employee’s ability to perform
92 his or her job responsibilities. For purposes of this
93 subsection, an employer may consider an employee’s ability to
94 perform his or her job responsibilities to be impaired if the
95 employee displays specific articulable symptoms while working
96 which decrease or lessen the performance of his or her duties or
97 tasks.
98 (3)(a) If an employer has a drug testing policy and an
99 employee or a job applicant tests positive for marijuana or its
100 metabolites, the employer must provide written notice within 5
101 business days after receipt of the positive test result to the
102 employee or job applicant of his or her right to provide an
103 explanation for the positive test result.
104 (b) Within 5 business days after receipt of the written
105 notice, the employee or job applicant may submit information to
106 the employer explaining or contesting the positive test result
107 or may request a confirmation test, as defined in s.
108 112.0455(5)(d), at the expense of the employee or job applicant.
109 (c) An employee or a job applicant may submit a physician
110 certification for medical marijuana or a medical marijuana use
111 registry identification card as part of his or her explanation
112 for the positive test result.
113 (d) If an employee or a job applicant fails to provide a
114 satisfactory explanation for the positive test result, an
115 employer must verify the positive test result with a
116 confirmation test, at the expense of the employer, before the
117 employer may take adverse personnel action against the employee
118 or job applicant.
119 (4)(a) Notwithstanding s. 381.986(16), an employee or a job
120 applicant who has been the subject of an adverse personnel
121 action in violation of this section may institute a civil action
122 in a court of competent jurisdiction for relief as set forth in
123 paragraph (c) within 180 days after the alleged violation.
124 (b) An employee or a job applicant may not recover damages
125 in any action brought under this subsection if the adverse
126 personnel action was predicated upon a ground other than the
127 employee’s or job applicant’s exercise of a right protected by
128 this section.
129 (c) In any action brought under this subsection, the court
130 may order any of the following:
131 1. An injunction against continued violation of this
132 section.
133 2. Reinstatement of the employee to the same position held
134 before the adverse personnel action, or to an equivalent
135 position.
136 3. Reinstatement of full fringe benefits and seniority
137 rights.
138 4. Compensation for lost wages, benefits, and other
139 remuneration.
140 5. Reasonable attorney fees and costs.
141 6. Any other compensatory damages allowable by general law.
142 (5) This section does not do any of the following:
143 (a) Prohibit an employer from taking adverse personnel
144 action against an employee for the possession or use of a
145 controlled substance, as defined in s. 893.02, during normal
146 business hours or require an employer to commit any act that
147 would cause the employer to violate federal law or that would
148 result in the loss of a federal contract or federal funding.
149 (b) Require a government medical assistance program or
150 private health insurer to reimburse a person for costs
151 associated with the use of medical marijuana.
152 (c) Require an employer to modify the job or working
153 conditions of a person who engages in the use of medical
154 marijuana, based on the reasonable business purposes of the
155 employer. However, notwithstanding s. 381.986(16) and except as
156 provided in paragraph (d), the employer must attempt to make
157 reasonable accommodations for the medical needs of an employee
158 who engages in the use of medical marijuana if the employee
159 holds a valid medical marijuana use identification card, unless
160 the employer can demonstrate that the accommodation would pose a
161 threat of harm or danger to persons or property, impose an undue
162 hardship on the employer, or prohibit an employee from
163 fulfilling his or her job responsibilities.
164 (d) Prohibit a law enforcement agency from adopting
165 policies and procedures that preclude an employee from engaging
166 in the use of medical marijuana.
167 Section 2. Present subsections (15) through (17) of section
168 381.986, Florida Statutes, are redesignated as subsections (16)
169 through (18), respectively, a new subsection (15) is added to
170 that section, and paragraph (a) of subsection (4) and paragraph
171 (h) of subsection (14) of that section are amended, to read:
172 381.986 Medical use of marijuana.—
173 (4) PHYSICIAN CERTIFICATION.—
174 (a) A qualified physician may issue a physician
175 certification only if the qualified physician:
176 1. Conducted an a physical examination while physically
177 present in the same room as the patient and a full assessment of
178 the medical history of the patient.
179 2. Diagnosed the patient with at least one qualifying
180 medical condition.
181 3. Determined that the medical use of marijuana would
182 likely outweigh the potential health risks for the patient, and
183 such determination must be documented in the patient’s medical
184 record. If a patient is younger than 18 years of age, a second
185 physician must concur with this determination, and such
186 concurrence must be documented in the patient’s medical record.
187 4. Determined whether the patient is pregnant and
188 documented such determination in the patient’s medical record. A
189 physician may not issue a physician certification, except for
190 low-THC cannabis, to a patient who is pregnant.
191 5. Reviewed the patient’s controlled drug prescription
192 history in the prescription drug monitoring program database
193 established pursuant to s. 893.055.
194 6. Reviews the medical marijuana use registry and confirmed
195 that the patient does not have an active physician certification
196 from another qualified physician.
197 7. Registers as the issuer of the physician certification
198 for the named qualified patient on the medical marijuana use
199 registry in an electronic manner determined by the department,
200 and:
201 a. Enters into the registry the contents of the physician
202 certification, including the patient’s qualifying condition and
203 the dosage not to exceed the daily dose amount determined by the
204 department, the amount and forms of marijuana authorized for the
205 patient, and any types of marijuana delivery devices needed by
206 the patient for the medical use of marijuana.
207 b. Updates the registry within 7 days after any change is
208 made to the original physician certification to reflect such
209 change.
210 c. Deactivates the registration of the qualified patient
211 and the patient’s caregiver when the physician no longer
212 recommends the medical use of marijuana for the patient.
213 8. Obtains the voluntary and informed written consent of
214 the patient for medical use of marijuana each time the qualified
215 physician issues a physician certification for the patient,
216 which shall be maintained in the patient’s medical record. The
217 patient, or the patient’s parent or legal guardian if the
218 patient is a minor, must sign the informed consent acknowledging
219 that the qualified physician has sufficiently explained its
220 content. The qualified physician must use a standardized
221 informed consent form adopted in rule by the Board of Medicine
222 and the Board of Osteopathic Medicine, which must include, at a
223 minimum, information related to:
224 a. The Federal Government’s classification of marijuana as
225 a Schedule I controlled substance.
226 b. The approval and oversight status of marijuana by the
227 Food and Drug Administration.
228 c. The current state of research on the efficacy of
229 marijuana to treat the qualifying conditions set forth in this
230 section.
231 d. The potential for addiction.
232 e. The potential effect that marijuana may have on a
233 patient’s coordination, motor skills, and cognition, including a
234 warning against operating heavy machinery, operating a motor
235 vehicle, or engaging in activities that require a person to be
236 alert or respond quickly.
237 f. The potential side effects of marijuana use, including
238 the negative health risks associated with smoking marijuana.
239 g. The risks, benefits, and drug interactions of marijuana.
240 h. That the patient’s de-identified health information
241 contained in the physician certification and medical marijuana
242 use registry may be used for research purposes.
243 (14) EXCEPTIONS TO OTHER LAWS.—
244 (h) Notwithstanding s. 893.13, s. 893.135, s. 893.147, or
245 any other provision of law, but subject to the requirements of
246 this section, a research institute established by a public
247 postsecondary educational institution, such as the H. Lee
248 Moffitt Cancer Center and Research Institute, Inc., established
249 under s. 1004.43;, or a state university that has achieved the
250 preeminent state research university designation under s.
251 1001.7065; or a third-party entity that is licensed by the
252 federal Drug Enforcement Administration and is under contract
253 with such a research institute or state university may grow,
254 possess, test, transport, and lawfully dispose of marijuana for
255 research purposes as provided by this section.
256 (15) RECIPROCITY.—
257 (a) Notwithstanding any law to the contrary, but subject to
258 the requirements of this subsection, a qualified patient
259 identification card or a caregiver identification card, or the
260 equivalent of either, issued under the laws of another state, a
261 United States territory, or the District of Columbia which
262 authorizes a nonresident patient or caregiver to receive
263 marijuana or a marijuana delivery device for medical use by the
264 nonresident patient with a qualifying medical condition or which
265 authorizes a person to assist with the medical use of marijuana
266 by the nonresident patient has the same force and effect as a
267 medical marijuana use registry identification card issued by the
268 department under this section.
269 (b) To be registered in the medical marijuana use registry,
270 a nonresident qualified patient or caregiver must provide to the
271 department a physician certification or its equivalent issued
272 under the laws of another state, a United States territory, or
273 the District of Columbia which meets all of the following
274 criteria:
275 1. The certification is issued by a physician who is
276 licensed to practice medicine in the jurisdiction where the
277 patient resides and who examined the patient and determined that
278 the patient has a qualifying condition for the medical use of
279 marijuana.
280 2. The certification specifies the amount and type of
281 marijuana or the type of marijuana delivery device the patient
282 is authorized to use.
283 (c) The department shall immediately register a nonresident
284 patient or caregiver who meets the requirements of paragraph (b)
285 in the medical marijuana use registry. The department shall
286 revoke the registration of a nonresident patient or caregiver
287 upon notification that the nonresident patient no longer has a
288 physician certification that meets the criteria of paragraph
289 (b).
290 (d) By January 1, 2022, the department shall adopt rules to
291 implement this section.
292 Section 3. Section 381.9885, Florida Statutes, is created
293 to read:
294 381.9885 Medical Marijuana Testing Advisory Council.—
295 (1) The Medical Marijuana Testing Advisory Council, an
296 advisory council as defined in s. 20.03(7), is established
297 within the Department of Health to advise the department on its
298 adoption and ongoing evaluations of marijuana testing policies
299 and standards. The council is adjunct to the department for
300 administrative purposes.
301 (2)(a) The council shall be composed of all of the
302 following members:
303 1. The State Surgeon General or his or her designee.
304 2. Two members appointed by the Commissioner of
305 Agriculture.
306 3. Two members appointed by the Governor.
307 4. Two members appointed by the President of the Senate.
308 5. Two members appointed by the Speaker of the House of
309 Representatives.
310 6. The dean of research of the University of Florida
311 Institute of Food and Agricultural Sciences or his or her
312 designee.
313 7. The president of Florida Agricultural and Mechanical
314 University or his or her designee.
315 8. The president or executive director of a statewide
316 marijuana testing association or his or her designee.
317 9. The president or executive director of a medical
318 marijuana trade association that does not primarily consist of
319 owners of marijuana dispensaries or marijuana laboratory testing
320 facilities or his or her designee.
321 10. One board member of a medical marijuana treatment
322 center licensed in this state.
323 11. One owner of a medical marijuana testing laboratory
324 certified in this state.
325 12. One laboratory scientist who holds a doctoral degree in
326 a related field and who has at least 3 years of experience in
327 marijuana laboratory testing.
328 13. One qualified patient, as defined in s. 381.986,
329 appointed by the Governor.
330 (b) The council shall annually elect by a two-thirds vote
331 one of the members of the council to serve as the chair.
332 (c) Members shall serve without compensation but are
333 entitled to reimbursement for per diem and travel expenses as
334 provided in s. 112.061.
335 (3)(a) The council shall hold its first meeting by October
336 1, 2021, and shall meet as often as necessary, but at least
337 three times each calendar year, upon the call of the chair.
338 (b) The council meetings may be held via teleconference or
339 other electronic means.
340 (c) A majority of the council members constitutes a quorum.
341 (4) The council shall make recommendations to the
342 department for its rules relating to marijuana testing
343 laboratories under s. 381.988(3), taking into consideration
344 input from stakeholders and any technological and scientific
345 advancements that, if implemented, would improve the safety and
346 effectiveness of marijuana testing standards in this state.
347 (5) By January 1 of each year, the council shall submit a
348 report of its findings and recommendations to the Governor, the
349 President of the Senate, and the Speaker of the House of
350 Representatives.
351 Section 4. Paragraph (c) of subsection (2) of section
352 456.47, Florida Statutes, is amended to read:
353 456.47 Use of telehealth to provide services.—
354 (2) PRACTICE STANDARDS.—
355 (c) A telehealth provider may not use telehealth to
356 prescribe a controlled substance unless the controlled substance
357 is prescribed for any of the following:
358 1. The treatment of a psychiatric disorder.;
359 2. Inpatient treatment at a hospital licensed under chapter
360 395.;
361 3. The treatment of a patient receiving hospice services as
362 defined in s. 400.601.; or
363 4. The treatment of a resident of a nursing home facility
364 as defined in s. 400.021.
365 5. The treatment of a qualified patient as defined in s.
366 381.986.
367 Section 5. This act shall take effect upon becoming a law.