Florida Senate - 2022                                    SB 1606
       By Senator Polsky
       29-00076-22                                           20221606__
    1                        A bill to be entitled                      
    2         An act relating to protections for public employees
    3         who use medical marijuana as qualified patients;
    4         creating s. 112.219, F.S.; defining terms; prohibiting
    5         a public employer from taking adverse personnel action
    6         against an employee or a job applicant who is a
    7         qualified patient for his or her use of medical
    8         marijuana; providing exceptions; requiring a public
    9         employer to provide written notice of an employee’s or
   10         a job applicant’s right to explain a positive
   11         marijuana test result within a specified timeframe;
   12         providing procedures that apply when a public employee
   13         or job applicant tests positive for marijuana;
   14         providing a cause of action and damages; providing
   15         construction; providing an effective date.
   17  Be It Enacted by the Legislature of the State of Florida:
   19         Section 1. Section 112.219, Florida Statutes, is created to
   20  read:
   21         112.219Medical Marijuana Public Employee Protection Act.—
   22         (1)As used in this section, the term:
   23         (a)“Adverse personnel action” means the refusal to hire or
   24  employ a qualified patient; the discharge, suspension, transfer,
   25  or demotion of a qualified patient; the mandatory retirement of
   26  a qualified patient; or discrimination against a qualified
   27  patient with respect to compensation, terms, conditions, or
   28  privileges of employment.
   29         (b)“Job applicant” means a person who has applied for a
   30  position with a public employer and has been offered employment
   31  conditioned upon his or her passing a drug test.
   32         (c)“Law enforcement agency” has the same meaning as in s.
   33  908.102.
   34         (d)“Physician certification” has the same meaning as in s.
   35  381.986.
   36         (e)“Public employee” or “employee” means an employee of a
   37  public employer.
   38         (f)“Public employer” or “employer” means a state,
   39  regional, county, local, or municipal governmental entity,
   40  whether executive, judicial, or legislative; an official, an
   41  officer, a department, a division, a bureau, a commission, an
   42  authority, or a political subdivision of such entity; or a
   43  public school, a Florida College System institution, or a state
   44  university that employs individuals for salary, wages, or other
   45  remuneration.
   46         (g)“Qualified patient” has the same meaning as in s.
   47  381.986.
   48         (h)“Undue hardship” means an action requiring significant
   49  difficulty or expense, when considered in light of all of the
   50  following factors:
   51         1.The nature, cost, and duration of the accommodation.
   52         2.The overall financial resources of the public employer.
   53         3.The overall size of the business of the public employer
   54  with respect to the number of employees and the number, type,
   55  and location of the public employer’s facilities.
   56         4.The effect on expenses and resources or any other
   57  impacts of such accommodation upon the operation of the public
   58  employer.
   59         (2)A public employer may not take adverse personnel action
   60  against an employee or a job applicant who is a qualified
   61  patient for his or her use of medical marijuana consistent with
   62  s. 381.986. However, a public employer may take appropriate
   63  adverse personnel action against an employee if the public
   64  employer establishes by a preponderance of the evidence that the
   65  lawful use of medical marijuana is impairing the employee’s
   66  ability to perform his or her job duties or responsibilities.
   67  For purposes of this subsection, a public employer may consider
   68  an employee’s ability to perform his or her job duties or
   69  responsibilities to be impaired if the employee displays
   70  specific articulable symptoms while working which adversely
   71  affect the performance of his or her duties or responsibilities.
   72         (3)(a)If a public employer has a drug testing policy and
   73  an employee or a job applicant tests positive for marijuana or
   74  its metabolites, the employer must provide written notice within
   75  5 business days after receipt of the positive test result to the
   76  employee or job applicant of his or her right to provide an
   77  explanation for the positive test result.
   78         (b)Within 5 business days after receipt of the written
   79  notice, the employee or job applicant may submit information to
   80  his or her employer explaining or contesting the positive test
   81  result or may request a confirmation test, as defined in s.
   82  112.0455(5)(d), at the expense of the employee or job applicant.
   83         (c)An employee or a job applicant may submit a physician
   84  certification for medical marijuana or a medical marijuana use
   85  registry identification card as part of his or her explanation
   86  for the positive test result.
   87         (d)If an employee or a job applicant fails to provide a
   88  satisfactory explanation for the positive test result, his or
   89  her employer must verify the positive test result with a
   90  confirmation test, at the expense of the employer, before the
   91  employer may take adverse personnel action against the employee
   92  or job applicant.
   93         (4)(a)Notwithstanding s. 381.986(15), a public employee or
   94  a job applicant who has been the subject of an adverse personnel
   95  action in violation of this section may institute a civil action
   96  in a court of competent jurisdiction for relief as set forth in
   97  paragraph (c) within 180 days after the alleged violation.
   98         (b)A public employee or a job applicant may not recover in
   99  any action brought under this subsection if the adverse
  100  personnel action was predicated upon a ground other than his or
  101  her exercise of a right protected by this section.
  102         (c)In any action brought under this subsection, the court
  103  may order any of the following:
  104         1.An injunction restraining continued violation of this
  105  section.
  106         2.Reinstatement of the public employee to the same
  107  position held before the adverse personnel action, or to an
  108  equivalent position.
  109         3.Reinstatement of full fringe benefits and seniority
  110  rights.
  111         4.Compensation for lost wages, benefits, and other
  112  remuneration.
  113         5.Reasonable attorney fees and costs.
  114         6.Any other compensatory damages allowed by general law.
  115         (5)This section does not do any of the following:
  116         (a)Prohibit a public employer from taking adverse
  117  personnel action against an employee for the possession or use
  118  of a controlled substance, as defined in s. 893.02, during
  119  normal business hours or require an employer to commit any act
  120  that would cause the employer to violate federal law or that
  121  would result in the loss of a federal contract or federal
  122  funding.
  123         (b)Require a governmental medical assistance program or
  124  private health insurer to reimburse a person for costs
  125  associated with his or her use of medical marijuana.
  126         (c)Require a public employer to modify the job or working
  127  conditions of a person who engages in the use of medical
  128  marijuana based on the reasonable business purposes of the
  129  employer. However, notwithstanding s. 381.986(15) and except as
  130  provided in paragraph (d), such employer shall attempt to make
  131  reasonable accommodations for the medical needs of an employee
  132  who engages in the use of medical marijuana if the employee
  133  holds a valid medical marijuana use identification card, unless
  134  the employer can demonstrate that the accommodation would pose a
  135  threat of harm or danger to persons or property, impose an undue
  136  hardship on the employer, or prevent an employee from fulfilling
  137  his or her job responsibilities.
  138         (d)Prohibit a law enforcement agency from adopting
  139  policies and procedures that preclude an employee from engaging
  140  in the use of medical marijuana.
  141         Section 2. This act shall take effect upon becoming a law.