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.
   45  Be It Enacted by the Legislature of the State of Florida:
   47         Section 1. Section 112.219, Florida Statutes, is created to
   48  read:
   49         112.219Medical 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.—
  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.