Senate Bill 962 (2020) — Medical marijuana employee protection
SB 962
Florida Bills
Florida Senate - 2020 SB 962 By Senator Berman 31-00557A-20 2020962__ Page 1 of 11 CODING: Words stricken are deletions; words underlined are additions. A bill to be entitled 1
An act relating to medical marijuana employee 2 protection; creating ss. 112.219 and 448.111, F.S.; 3 providing
definitions; prohibiting an employer from 4 taking adverse personnel action against an employee or 5 job applicant who is a qualified patient using medical 6 marijuana; providing exceptions; requiring an employer 7 to provide written notice to an employee or job 8 applicant who tests positive for marijuana of his or 9 her right to explain the positive test result; 10 providing procedures when an employee or job applicant 11 tests positive for marijuana; providing a cause of 12 action and damages; providing construction; providing 13 an effective date. 14 15 Be It Enacted by the Legislature of the State of Florida: 16 17
Section
Section 112.219, Florida Statutes, is created to 18 read: 19 112.219 Medical Marijuana Public Employee Protection Act.— 20
(1) As used in this section, the term: 21 (a) “Adverse personnel action” means the refusal to hire or 22 employ a qualified patient; the discharge, suspension, transfer, 23 or demotion of a qualified patient; the mandatory retirement of 24 a qualified patient; or the discrimination of a qualified 25 patient with respect to compensation, terms, conditions, or 26 privileges of employment. 27 (b) “Employee” has the same meaning as in s. 112.0455. 28 (c) “Employer” means a state, regional, county, local, or 29
Florida Senate - 2020 SB 962 31-00557A-20 2020962__ Page 2 of 11 CODING: Words stricken are deletions; words underlined are additions. municipal government entity, whether executive, judicial, or 30 legislative; an official, officer, department, division, bureau, 31 commission, authority, or political subdivision therein; or a 32 public school, community college, or state university that 33 employs individuals for salary, wages, or other remuneration. 34 (d) “Job applicant” has the same meaning as in s. 112.0455. 35 (e) “Law enforcement agency” has the same meaning as in s. 36 908.102. 37 (f) “Physician certification” has the same meaning as in s. 38 381.986. 39 (g) “Qualified patient” has the same meaning as in s. 40 381.986. 41 (h) “Safety-sensitive” means tasks or duties of a job which 42 the employer reasonably believes could affect the safety and 43 health of the employee performing the tasks or duties or other 44 persons, including, but not limited to, any of the following: 45 1.
The handling, packaging, processing, storage, disposal, 46 or transport of hazardous materials. 47 2. The operation of a motor vehicle, equipment, machinery, 48 or power tools. 49 3. The repair, maintenance, or monitoring of any equipment, 50 machinery, or manufacturing process, the malfunction or 51 disruption of which could result in injury or property damage. 52 4. The performance of firefighting duties. 53 5. The operation, maintenance, or oversight of critical 54 services and infrastructure, including, but not limited to, 55 electric, gas, and water utilities or power generation or 56 distribution. 57 6.
The extraction, compression, processing, manufacturing, 58
Florida Senate - 2020 SB 962 31-00557A-20 2020962__ Page 3 of 11 CODING: Words stricken are deletions; words underlined are additions. handling, packaging, storage, disposal, treatment, or transport 59 of potentially volatile, flammable, combustible materials, 60 elements, chemicals, or any other highly regulated component. 61 7. The dispensing of pharmaceuticals. 62 8. The carrying of a firearm. 63 9. The direct care of a patient or child. 64 (i) “Undue hardship” means an action requiring significant 65 difficulty or expense, when considered in light of the following 66 factors: 67 1.
The nature, cost, and duration of the accommodation. 68 2. The overall financial resources of the employer. 69 3. The overall size of the business of the employer with 70 respect to the number of employees and the number, type, and 71 location of the employer’s facilities. 72 4. The effect on expenses and resources or any other 73 impacts of such accommodation upon the operation of the 74 employer. 75
(2) An employer may not take adverse personnel action 76 against an employee or job applicant who is a qualified patient 77 using medical marijuana consistent with s. 381.986, unless the 78 position held by the employee or sought by the job applicant is 79 one involving safety-sensitive job duties. However, an employer 80 may take appropriate adverse personnel action against any 81 employee if the employer establishes by a preponderance of the 82 evidence that the lawful use of medical marijuana is impairing 83 the employee’s ability to perform his or her job 84 responsibilities.
For purposes of this subsection, an employer 85 may consider an employee’s ability to perform his or her job 86 responsibilities to be impaired if the employee displays 87
Florida Senate - 2020 SB 962 31-00557A-20 2020962__ Page 4 of 11 CODING: Words stricken are deletions; words underlined are additions. specific articulable symptoms while working which decrease or 88 lessen the performance of his or her duties or tasks. 89 (3)(
a) If an employer has a drug testing policy and an 90 employee or job applicant tests positive for marijuana or its 91 metabolites, the employer must provide written notice within 5 92 business days after receipt of the positive test result to the 93 employee or job applicant of his or her right to provide an 94 explanation for the positive test result. 95 (
b) Within 5 business days after receipt of the written 96 notice, the employee or job applicant may submit information to 97 an employer explaining or contesting the positive test result or 98 may request a confirmation test, as defined in s. 112.0455, at 99 the expense of the employee or job applicant. 100 (
c) An employee or a job applicant may submit a physician 101 certification for medical marijuana or a medical marijuana use 102 registry identification card as part of his or her explanation 103 for the positive test result. 104 (
d) If an employee or a job applicant fails to provide a 105 satisfactory explanation for the positive test result, an 106 employer must verify the positive test result with a 107 confirmation test, at the expense of the employer, before the 108 employer may take adverse personnel action against the employee 109 or job applicant. 110 (4)(
a) Notwithstanding s. 381.986(15), an employee or a job 111 applicant who has been the subject of an adverse personnel 112 action in violation of this
section may institute a civil action 113 in a court of competent jurisdiction for relief as set forth in 114 paragraph (
c) within 180 days after the alleged violation. 115 (
b) An employee or a job applicant may not recover in any 116
Florida Senate - 2020 SB 962 31-00557A-20 2020962__ Page 5 of 11 CODING: Words stricken are deletions; words underlined are additions. action brought under this subsection if the adverse personnel 117 action was predicated upon a ground other than the employee’s or 118 job applicant’s exercise of a right protected by this section. 119 (
c) In any action brought under this subsection, the court 120 may order any of the following: 121 1. An injunction restraining continued violation of this 122 section. 123 2. Reinstatement of the employee to the same position held 124 before the adverse personnel action, or to an equivalent 125 position. 126 3. Reinstatement of full fringe benefits and seniority 127 rights. 128 4. Compensation for lost wages, benefits, and other 129 remuneration. 130 5. Reasonable attorney fees and costs. 131 6. Any other compensatory damages allowable by general law. 132
(5) This
section does not: 133 (
a) Prohibit an employer from taking adverse personnel 134 action against an employee for the possession or use of a 135 controlled substance, as defined in s. 893.02, during normal 136 business hours or require an employer to commit any act that 137 would cause the employer to violate federal law or that would 138 result in the loss of a federal contract or federal funding; 139 (
b) Require a government medical assistance program or 140 private health insurer to reimburse a person for costs 141 associated with the use of medical marijuana; or 142 (c)1. Require an employer to modify the job or working 143 conditions of a person who engages in the use of medical 144 marijuana based on the reasonable business purposes of the 145
Florida Senate - 2020 SB 962 31-00557A-20 2020962__ Page 6 of 11 CODING: Words stricken are deletions; words underlined are additions. employer.
However, notwithstanding s. 381.986(15) and except as 146 provided in subparagraph 2., the employer must attempt to make 147 reasonable accommodations for the medical needs of an employee 148 who engages in the use of medical marijuana if the employee 149 holds a valid medical marijuana use identification card, unless 150 the employer can demonstrate that the accommodation would pose a 151 threat of harm or danger to persons or property, impose an undue 152 hardship on the employer, or prohibit an employee from 153 fulfilling his or her job responsibilities. 154 2.
Prohibit a law enforcement agency from adopting policies 155 and procedures that preclude an employee from engaging in the 156 use of medical marijuana. 157
Section
Section 448.111, Florida Statutes, is created to 158 read: 159 448.111 Medical Marijuana Employee Protection Act.— 160
(1) As used in this section, the term: 161 (a) “Adverse personnel action” means the refusal to hire or 162 employ a qualified patient; the discharge, suspension, transfer, 163 or demotion of a qualified patient; the mandatory retirement of 164 a qualified patient; or the discrimination of a qualified 165 patient with respect to compensation, terms, conditions, or 166 privileges of employment. 167 (b) “Employee” has the same meaning as in s. 448.101. 168 (c) “Employer” means a private individual, firm, 169 partnership, institution, corporation, or association that 170 employs individuals for salary, wages, or other remuneration. 171 (d) “Job applicant” has the same meaning as in s. 440.102. 172 (e) “Law enforcement agency” has the same meaning as in s. 173 908.102. 174
Florida Senate - 2020 SB 962 31-00557A-20 2020962__ Page 7 of 11 CODING: Words stricken are deletions; words underlined are additions. (f) “Physician certification” has the same meaning as in s. 175 381.986. 176 (g) “Qualified patient” has the same meaning as in s. 177 381.986. 178 (h) “Safety-sensitive” means tasks or duties of a job which 179 the employer reasonably believes could affect the safety and 180 health of the employee performing the tasks or duties or other 181 persons, including, but not limited to, any of the following: 182 1.
The handling, packaging, processing, storage, disposal, 183 or transport of hazardous materials. 184 2. The operation of a motor vehicle, equipment, machinery, 185 or power tools. 186 3. The repair, maintenance, or monitoring of any equipment, 187 machinery, or manufacturing process, the malfunction or 188 disruption of which could result in injury or property damage. 189 4. The performance of firefighting duties. 190 5.
The operation, maintenance, or oversight of critical 191 services and infrastructure, including, but not limited to, 192 electric, gas, and water utilities or power generation or 193 distribution. 194 6. The extraction, compression, processing, manufacturing, 195 handling, packaging, storage, disposal, treatment, or transport 196 of potentially volatile, flammable, combustible materials, 197 elements, chemicals, or any other highly regulated component. 198 7. The dispensing of pharmaceuticals. 199 8. The carrying of a firearm. 200 9.
The direct care of a patient or child. 201 (i) “Undue hardship” means an action requiring significant 202 difficulty or expense, when considered in light of the following 203
Florida Senate - 2020 SB 962 31-00557A-20 2020962__ Page 8 of 11 CODING: Words stricken are deletions; words underlined are additions. factors: 204 1. The nature, cost, and duration of the accommodation. 205 2. The overall financial resources of the employer. 206 3. The overall size of the business of the employer with 207 respect to the number of employees and the number, type, and 208 location of the employer’s facilities. 209 4. The effect on expenses and resources or any other 210 impacts of such accommodation upon the operation of the 211 employer. 212
(2) An employer may not take adverse personnel action 213 against an employee or a job applicant who is a qualified 214 patient using medical marijuana consistent with s. 381.986, 215 unless the position held by the employee or sought by the job 216 applicant is one involving safety-sensitive job duties. However, 217 an employer may take appropriate adverse personnel action 218 against any employee if the employer establishes by a 219 preponderance of the evidence that the lawful use of medical 220 marijuana is impairing the employee’s ability to perform his or 221 her job responsibilities.
For purposes of this subsection, an 222 employer may consider an employee’s ability to perform his or 223 her job responsibilities to be impaired if the employee displays 224 specific articulable symptoms while working which decrease or 225 lessen the performance of his or her duties or tasks. 226 (3)(
a) If an employer has a drug testing policy and an 227 employee or a job applicant tests positive for marijuana or its 228 metabolites, the employer must provide written notice within 5 229 business days after receipt of the positive test result to the 230 employee or job applicant of his or her right to provide an 231 explanation for the positive test result. 232
Florida Senate - 2020 SB 962 31-00557A-20 2020962__ Page 9 of 11 CODING: Words stricken are deletions; words underlined are additions. (
b) Within 5 business days after receipt of the written 233 notice, the employee or job applicant may submit information to 234 an employer explaining or contesting the positive test result or 235 may request a confirmation test, as defined in s. 440.102, at 236 the expense of the employee or job applicant. 237 (
c) An employee or a job applicant may submit a physician 238 certification for medical marijuana or a medical marijuana use 239 registry identification card as part of his or her explanation 240 for the positive test result. 241 (
d) If an employee or a job applicant fails to provide a 242 satisfactory explanation for the positive test result, an 243 employer must verify the positive test result with a 244 confirmation test, at the expense of the employer, before the 245 employer may take adverse personnel action against the employee 246 or job applicant. 247 (4)(
a) Notwithstanding s. 381.986(15), an employee or a job 248 applicant who has been the subject of an adverse personnel 249 action in violation of this
section may institute a civil action 250 in a court of competent jurisdiction for relief as set forth in 251 paragraph (
c) within 180 days after the alleged violation. 252 (
b) An employee or a job applicant may not recover in any 253 action brought under this subsection if the adverse personnel 254 action was predicated upon a ground other than the employee’s or 255 job applicant’s exercise of a right protected by this section. 256 (
c) In any action brought under this subsection, the court 257 may order any of the following: 258 1. An injunction restraining continued violation of this 259 section. 260 2. Reinstatement of the employee to the same position held 261
Florida Senate - 2020 SB 962 31-00557A-20 2020962__ Page 10 of 11 CODING: Words stricken are deletions; words underlined are additions. before the adverse personnel action, or to an equivalent 262 position. 263 3. Reinstatement of full fringe benefits and seniority 264 rights. 265 4. Compensation for lost wages, benefits, and other 266 remuneration. 267 5. Reasonable attorney fees and costs. 268 6. Any other compensatory damages allowable by general law. 269
(5) This
section does not: 270 (
a) Prohibit an employer from taking adverse personnel 271 action against an employee for the possession or use of a 272 controlled substance, as defined in s. 893.02, during normal 273 business hours or require an employer to commit any act that 274 would cause the employer to violate federal law or that would 275 result in the loss of a federal contract or federal funding; 276 (
b) Require a government medical assistance program or 277 private health insurer to reimburse a person for costs 278 associated with the use of medical marijuana; or 279 (c)1. Require an employer to modify the job or working 280 conditions of a person who engages in the use of medical 281 marijuana based on the reasonable business purposes of the 282 employer.
However, notwithstanding s. 381.986(15) and except as 283 provided in subparagraph 2., the employer must attempt to make 284 reasonable accommodations for the medical needs of an employee 285 who engages in the use of medical marijuana if the employee 286 holds a valid medical marijuana use identification card, unless 287 the employer can demonstrate that the accommodation would pose a 288 threat of harm or danger to persons or property, impose an undue 289 hardship on the employer, or prohibit an employee from 290
Florida Senate - 2020 SB 962 31-00557A-20 2020962__ Page 11 of 11 CODING: Words stricken are deletions; words underlined are additions. fulfilling his or her job responsibilities. 291 2. Prohibit a law enforcement agency from adopting policies 292 and procedures that preclude an employee from engaging in the 293 use of medical marijuana. 294