Florida Senate - 2021                                     SB 692
       By Senator Polsky
       29-00444B-21                                           2021692__
    1                        A bill to be entitled                      
    2         An act relating to medical marijuana public employee
    3         protection; creating s. 112.219, F.S.; providing
    4         definitions; prohibiting an employer from taking
    5         adverse personnel action against an employee or a job
    6         applicant who is a qualified patient using medical
    7         marijuana; providing exceptions; requiring an employer
    8         to provide written notice of an employee or job
    9         applicant’s right to explain a positive marijuana test
   10         result within a specified timeframe; providing
   11         procedures when an employee or job applicant tests
   12         positive for marijuana; providing a cause of action
   13         and damages; providing construction; providing an
   14         effective date.
   16  Be It Enacted by the Legislature of the State of Florida:
   18         Section 1. Section 112.219, Florida Statutes, is created to
   19  read:
   20         112.219Medical Marijuana Public Employee Protection Act.—
   21         (1)As used in this section, the term:
   22         (a)“Adverse personnel action” means the refusal to hire or
   23  employ a qualified patient; the discharge, suspension, transfer,
   24  or demotion of a qualified patient; the mandatory retirement of
   25  a qualified patient; or discrimination against a qualified
   26  patient with respect to compensation, terms, conditions, or
   27  privileges of employment.
   28         (b)“Employee” has the same meaning as in s.
   29  112.0455(5)(g).
   30         (c)“Employer” means a state, regional, county, local, or
   31  municipal government entity, whether executive, judicial, or
   32  legislative; an official, an officer, a department, a division,
   33  a bureau, a commission, an authority, or a political subdivision
   34  therein; or a public school, community college, or state
   35  university that employs individuals for salary, wages, or other
   36  remuneration.
   37         (d)“Job applicant” has the same meaning as in s.
   38  112.0455(5)(f).
   39         (e)“Law enforcement agency” has the same meaning as in s.
   40  908.102.
   41         (f)“Physician certification” has the same meaning as in s.
   42  381.986.
   43         (g)“Qualified patient” has the same meaning as in s.
   44  381.986.
   45         (h)“Undue hardship” means an action requiring significant
   46  difficulty or expense, when considered in light of the following
   47  factors:
   48         1.The nature, cost, and duration of the accommodation.
   49         2.The overall financial resources of the employer.
   50         3.The overall size of the business of the employer with
   51  respect to the number of employees and the number, type, and
   52  location of the employer’s facilities.
   53         4.The effect on expenses and resources or any other
   54  impacts of such accommodation upon the operation of the
   55  employer.
   56         (2)An employer may not take adverse personnel action
   57  against an employee or a job applicant who is a qualified
   58  patient using medical marijuana consistent with s. 381.986.
   59  However, an employer may take appropriate adverse personnel
   60  action against any employee if the employer establishes by a
   61  preponderance of the evidence that the lawful use of medical
   62  marijuana is impairing the employee’s ability to perform his or
   63  her job responsibilities. For purposes of this subsection, an
   64  employer may consider an employee’s ability to perform his or
   65  her job responsibilities to be impaired if the employee displays
   66  specific articulable symptoms while working which decrease or
   67  lessen the performance of his or her duties or tasks.
   68         (3)(a)If an employer has a drug testing policy and an
   69  employee or a job applicant tests positive for marijuana or its
   70  metabolites, the employer must provide written notice within 5
   71  business days after receipt of the positive test result to the
   72  employee or job applicant of his or her right to provide an
   73  explanation for the positive test result.
   74         (b)Within 5 business days after receipt of the written
   75  notice, the employee or job applicant may submit information to
   76  an employer explaining or contesting the positive test result or
   77  may request a confirmation test, as defined in s.
   78  112.0455(5)(d), at the expense of the employee or job applicant.
   79         (c)An employee or a job applicant may submit a physician
   80  certification for medical marijuana or a medical marijuana use
   81  registry identification card as part of his or her explanation
   82  for the positive test result.
   83         (d)If an employee or a job applicant fails to provide a
   84  satisfactory explanation for the positive test result, an
   85  employer must verify the positive test result with a
   86  confirmation test, at the expense of the employer, before the
   87  employer may take adverse personnel action against the employee
   88  or job applicant.
   89         (4)(a)Notwithstanding s. 381.986(15), an employee or a job
   90  applicant who has been the subject of an adverse personnel
   91  action in violation of this section may institute a civil action
   92  in a court of competent jurisdiction for relief as set forth in
   93  paragraph (c) within 180 days after the alleged violation.
   94         (b)An employee or a job applicant may not recover in any
   95  action brought under this subsection if the adverse personnel
   96  action was predicated upon a ground other than the employee’s or
   97  job applicant’s exercise of a right protected by this section.
   98         (c)In any action brought under this subsection, the court
   99  may order any of the following:
  100         1.An injunction restraining continued violation of this
  101  section.
  102         2.Reinstatement of the employee to the same position held
  103  before the adverse personnel action, or to an equivalent
  104  position.
  105         3.Reinstatement of full fringe benefits and seniority
  106  rights.
  107         4.Compensation for lost wages, benefits, and other
  108  remuneration.
  109         5.Reasonable attorney fees and costs.
  110         6.Any other compensatory damages allowable by general law.
  111         (5)This section does not:
  112         (a)Prohibit an employer from taking adverse personnel
  113  action against an employee for the possession or use of a
  114  controlled substance, as defined in s. 893.02, during normal
  115  business hours or require an employer to commit any act that
  116  would cause the employer to violate federal law or that would
  117  result in the loss of a federal contract or federal funding;
  118         (b)Require a government medical assistance program or
  119  private health insurer to reimburse a person for costs
  120  associated with the use of medical marijuana;
  121         (c)Require an employer to modify the job or working
  122  conditions of a person who engages in the use of medical
  123  marijuana based on the reasonable business purposes of the
  124  employer. However, notwithstanding s. 381.986(15) and except as
  125  provided in paragraph (d), the employer must attempt to make
  126  reasonable accommodations for the medical needs of an employee
  127  who engages in the use of medical marijuana if the employee
  128  holds a valid medical marijuana use identification card, unless
  129  the employer can demonstrate that the accommodation would pose a
  130  threat of harm or danger to persons or property, impose an undue
  131  hardship on the employer, or prohibit an employee from
  132  fulfilling his or her job responsibilities; or
  133         (d)Prohibit a law enforcement agency from adopting
  134  policies and procedures that preclude an employee from engaging
  135  in the use of medical marijuana.
  136         Section 2. This act shall take effect upon becoming a law.