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. 15 16 Be It Enacted by the Legislature of the State of Florida: 17 18 Section 1. Section 112.219, Florida Statutes, is created to 19 read: 20 112.219 Medical 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.