Senate Bill 1820 (2021) — Medical use of marijuana
SB 1820
Florida Bills
Florida Senate - 2021 SB 1820 By Senator Powell 30-01587A-21 20211820__ Page 1 of 13 CODING: Words stricken are deletions; words underlined are additions. A bill to be entitled 1
An act relating to medical use of marijuana; creating 2 s. 112.219, F.S.; defining terms; prohibiting an 3 employer from taking adverse personnel action against 4 an employee or a job applicant who is a qualified 5 patient for his or her lawful use of medical 6 marijuana; providing exceptions; requiring an employer 7 to provide written notice of an employee’s or job 8 applicant’s right to explain a positive marijuana test 9 result within a specified timeframe; providing 10 procedures for when an employee or job applicant tests 11 positive for marijuana; providing for a cause of 12 action and damages; providing construction; amending 13 s. 381.986, F.S.; deleting a requirement that certain 14 qualified physician examinations and assessments of a 15 qualified patient be conducted while physically 16 present in the same room as the qualified patient; 17 authorizing certain research institutes and state 18 universities to grow marijuana for research purposes; 19 authorizing certain third-party entities to grow, 20 possess, test, transport, and lawfully dispose of 21 marijuana for research purposes; providing that 22 certain nonresident qualified patient or caregiver 23 identification cards have the same force and effect as 24 those issued in this state; specifying requirements 25 for a nonresident patient or caregiver to be 26 registered in the medical marijuana use registry; 27 requiring the Department of Health to immediately 28 register a patient or caregiver in the registry if 29
Florida Senate - 2021 SB 1820 30-01587A-21 20211820__ Page 2 of 13 CODING: Words stricken are deletions; words underlined are additions. they meet such requirements; requiring the department 30 to revoke the registration under certain 31 circumstances; requiring the department to adopt rules 32 by a specified date; creating s. 381.9885, F.S.; 33 establishing the Medical Marijuana Testing Advisory 34 Council within the department for a specified purpose; 35 providing for membership, meetings, and duties of the 36 council; requiring the council to submit annual 37 reports to the Governor and the Legislature by a 38 specified date; amending s. 456.47, F.S.; authorizing 39 telehealth providers to prescribe controlled 40 substances to qualified patients through telehealth 41 under certain circumstances; providing an effective 42 date. 43 44 Be It Enacted by the Legislature of the State of Florida: 45 46
Section
Section 112.219, Florida Statutes, is created to 47 read: 48 112.219 Medical Marijuana Public Employee Protection Act.— 49
(1) As used in this section, the term: 50 (a) “Adverse personnel action” means the refusal to hire or 51 employ a qualified patient; the discharge, suspension, transfer, 52 or demotion of a qualified patient; the mandatory retirement of 53 a qualified patient; or discrimination against a qualified 54 patient with respect to compensation, terms, conditions, or 55 privileges of employment. 56 (b) “Employee” has the same meaning as in s. 57 112.0455(5)(g). 58
Florida Senate - 2021 SB 1820 30-01587A-21 20211820__ Page 3 of 13 CODING: Words stricken are deletions; words underlined are additions. (c) “Employer” means a state, regional, county, local, or 59 municipal government entity, whether executive, judicial, or 60 legislative; an official, an officer, a department, a division, 61 a bureau, a commission, an authority, or a political subdivision 62 thereof; or a public school, community college, or state 63 university that employs individuals for salary, wages, or other 64 remuneration. 65 (d) “Job applicant” has the same meaning as in s. 66 112.0455(5)(f). 67 (e) “Law enforcement agency” has the same meaning as in s. 68 908.102. 69 (f) “Physician certification” has the same meaning as in s. 70 381.986. 71 (g) “Qualified patient” has the same meaning as in s. 72 381.986. 73 (h) “Undue hardship” means an action that involves 74 significant difficulty or expense, when considered in light of 75 the following factors: 76 1.
The nature, cost, and duration of the accommodation. 77 2. The overall financial resources of the employer. 78 3. The overall size of the employer’s business with respect 79 to the number of employees and the number, type, and location of 80 the employer’s facilities. 81 4. The effect on expenses and resources or any other 82 impacts of such accommodation upon the operation of the 83 employer’s business. 84
(2) An employer may not take adverse personnel action 85 against an employee or a job applicant who is a qualified 86 patient for his or her use of medical marijuana consistent with 87
Florida Senate - 2021 SB 1820 30-01587A-21 20211820__ Page 4 of 13 CODING: Words stricken are deletions; words underlined are additions. s. 381.986. However, an employer may take appropriate adverse 88 personnel action against an employee if the employer establishes 89 by a preponderance of the evidence that the lawful use of 90 medical marijuana is impairing the employee’s ability to perform 91 his or her job responsibilities.
For purposes of this 92 subsection, an employer may consider an employee’s ability to 93 perform his or her job responsibilities to be impaired if the 94 employee displays specific articulable symptoms while working 95 which decrease or lessen the performance of his or her duties or 96 tasks. 97 (3)(
a) If an employer has a drug testing policy and an 98 employee or a job applicant tests positive for marijuana or its 99 metabolites, the employer must provide written notice within 5 100 business days after receipt of the positive test result to the 101 employee or job applicant of his or her right to provide an 102 explanation for the positive test result. 103 (
b) Within 5 business days after receipt of the written 104 notice, the employee or job applicant may submit information to 105 the employer explaining or contesting the positive test result 106 or may request a confirmation test, as defined in s. 107 112.0455(5)(d), at the expense of the employee or job applicant. 108 (
c) An employee or a job applicant may submit a physician 109 certification for medical marijuana or a medical marijuana use 110 registry identification card as part of his or her explanation 111 for the positive test result. 112 (
d) If an employee or a job applicant fails to provide a 113 satisfactory explanation for the positive test result, an 114 employer must verify the positive test result with a 115 confirmation test, at the expense of the employer, before the 116
Florida Senate - 2021 SB 1820 30-01587A-21 20211820__ Page 5 of 13 CODING: Words stricken are deletions; words underlined are additions. employer may take adverse personnel action against the employee 117 or job applicant. 118 (4)(
a) Notwithstanding s. 381.986(16), an employee or a job 119 applicant who has been the subject of an adverse personnel 120 action in violation of this
section may institute a civil action 121 in a court of competent jurisdiction for relief as set forth in 122 paragraph (
c) within 180 days after the alleged violation. 123 (
b) An employee or a job applicant may not recover damages 124 in any action brought under this subsection if the adverse 125 personnel action was predicated upon a ground other than the 126 employee’s or job applicant’s exercise of a right protected by 127 this section. 128 (
c) In any action brought under this subsection, the court 129 may order any of the following: 130 1. An injunction against continued violation of this 131 section. 132 2. Reinstatement of the employee to the same position held 133 before the adverse personnel action, or to an equivalent 134 position. 135 3. Reinstatement of full fringe benefits and seniority 136 rights. 137 4. Compensation for lost wages, benefits, and other 138 remuneration. 139 5. Reasonable attorney fees and costs. 140 6. Any other compensatory damages allowable by general law. 141
(5) This
section does not do any of the following: 142 (
a) Prohibit an employer from taking adverse personnel 143 action against an employee for the possession or use of a 144 controlled substance, as defined in s. 893.02, during normal 145
Florida Senate - 2021 SB 1820 30-01587A-21 20211820__ Page 6 of 13 CODING: Words stricken are deletions; words underlined are additions. business hours or require an employer to commit any act that 146 would cause the employer to violate federal law or that would 147 result in the loss of a federal contract or federal funding. 148 (
b) Require a government medical assistance program or 149 private health insurer to reimburse a person for costs 150 associated with the use of medical marijuana. 151 (
c) Require an employer to modify the job or working 152 conditions of a person who engages in the use of medical 153 marijuana, based on the reasonable business purposes of the 154 employer.
However, notwithstanding s. 381.986(16) and except as 155 provided in paragraph (d), the employer must attempt to make 156 reasonable accommodations for the medical needs of an employee 157 who engages in the use of medical marijuana if the employee 158 holds a valid medical marijuana use identification card, unless 159 the employer can demonstrate that the accommodation would pose a 160 threat of harm or danger to persons or property, impose an undue 161 hardship on the employer, or prohibit an employee from 162 fulfilling his or her job responsibilities. 163 (
d) Prohibit a law enforcement agency from adopting 164 policies and procedures that preclude an employee from engaging 165 in the use of medical marijuana. 166
Section 2. Present subsections (15) through (17) of
section 167 381.986, Florida Statutes, are redesignated as subsections (16) 168 through (18), respectively, a new subsection (15) is added to 169 that section, and paragraph (
a) of subsection (4) and paragraph 170 (
h) of subsection (14) of that
section are amended, to read: 171 381.986 Medical use of marijuana.— 172
(4) PHYSICIAN CERTIFICATION.— 173 (
a) A qualified physician may issue a physician 174
Florida Senate - 2021 SB 1820 30-01587A-21 20211820__ Page 7 of 13 CODING: Words stricken are deletions; words underlined are additions. certification only if the qualified physician: 175 1. Conducted an a physical examination while physically 176 present in the same room as the patient and a full assessment of 177 the medical history of the patient. 178 2. Diagnosed the patient with at least one qualifying 179 medical condition. 180 3.
Determined that the medical use of marijuana would 181 likely outweigh the potential health risks for the patient, and 182 such determination must be documented in the patient’s medical 183 record. If a patient is younger than 18 years of age, a second 184 physician must concur with this determination, and such 185 concurrence must be documented in the patient’s medical record. 186 4. Determined whether the patient is pregnant and 187 documented such determination in the patient’s medical record.
A 188 physician may not issue a physician certification, except for 189 low-THC cannabis, to a patient who is pregnant. 190 5. Reviewed the patient’s controlled drug prescription 191 history in the prescription drug monitoring program database 192 established pursuant to s. 893.055. 193 6. Reviews the medical marijuana use registry and confirmed 194 that the patient does not have an active physician certification 195 from another qualified physician. 196 7.
Registers as the issuer of the physician certification 197 for the named qualified patient on the medical marijuana use 198 registry in an electronic manner determined by the department, 199 and: 200 a. Enters into the registry the contents of the physician 201 certification, including the patient’s qualifying condition and 202 the dosage not to exceed the daily dose amount determined by the 203
Florida Senate - 2021 SB 1820 30-01587A-21 20211820__ Page 8 of 13 CODING: Words stricken are deletions; words underlined are additions. department, the amount and forms of marijuana authorized for the 204 patient, and any types of marijuana delivery devices needed by 205 the patient for the medical use of marijuana. 206 b. Updates the registry within 7 days after any change is 207 made to the original physician certification to reflect such 208 change. 209 c.
Deactivates the registration of the qualified patient 210 and the patient’s caregiver when the physician no longer 211 recommends the medical use of marijuana for the patient. 212 8. Obtains the voluntary and informed written consent of 213 the patient for medical use of marijuana each time the qualified 214 physician issues a physician certification for the patient, 215 which shall be maintained in the patient’s medical record.
The 216 patient, or the patient’s parent or legal guardian if the 217 patient is a minor, must sign the informed consent acknowledging 218 that the qualified physician has sufficiently explained its 219 content. The qualified physician must use a standardized 220 informed consent form adopted in rule by the Board of Medicine 221 and the Board of Osteopathic Medicine, which must include, at a 222 minimum, information related to: 223 a. The Federal Government’s classification of marijuana as 224 a
Schedule I controlled substance. 225 b. The approval and oversight status of marijuana by the 226 Food and Drug Administration. 227 c. The current state of research on the efficacy of 228 marijuana to treat the qualifying conditions set forth in this 229 section. 230 d. The potential for addiction. 231 e. The potential effect that marijuana may have on a 232
Florida Senate - 2021 SB 1820 30-01587A-21 20211820__ Page 9 of 13 CODING: Words stricken are deletions; words underlined are additions. patient’s coordination, motor skills, and cognition, including a 233 warning against operating heavy machinery, operating a motor 234 vehicle, or engaging in activities that require a person to be 235 alert or respond quickly. 236 f. The potential side effects of marijuana use, including 237 the negative health risks associated with smoking marijuana. 238 g. The risks, benefits, and drug interactions of marijuana. 239 h.
That the patient’s de-identified health information 240 contained in the physician certification and medical marijuana 241 use registry may be used for research purposes. 242
(14) EXCEPTIONS TO OTHER LAWS.— 243 (
h) Notwithstanding s. 893.13, s. 893.135, s. 893.147, or 244 any other provision of law, but subject to the requirements of 245 this section, a research institute established by a public 246 postsecondary educational institution, such as the H.
Lee 247 Moffitt Cancer Center and Research Institute, Inc., established 248 under s. 1004.43;, or a state university that has achieved the 249 preeminent state research university designation under s. 250 1001.7065; or a third-party entity that is licensed by the 251 federal Drug Enforcement Administration and is under contract 252 with such a research institute or state university may grow, 253 possess, test, transport, and lawfully dispose of marijuana for 254 research purposes as provided by this section. 255
(15) RECIPROCITY.— 256 (
a) Notwithstanding any law to the contrary, but subject to 257 the requirements of this subsection, a qualified patient 258 identification card or a caregiver identification card, or the 259 equivalent of either, issued under the laws of another state, a 260 United States territory, or the District of Columbia which 261
Florida Senate - 2021 SB 1820 30-01587A-21 20211820__ Page 10 of 13 CODING: Words stricken are deletions; words underlined are additions. authorizes a nonresident patient or caregiver to receive 262 marijuana or a marijuana delivery device for medical use by the 263 nonresident patient with a qualifying medical condition or which 264 authorizes a person to assist with the medical use of marijuana 265 by the nonresident patient has the same force and effect as a 266 medical marijuana use registry identification card issued by the 267 department under this section. 268 (
b) To be registered in the medical marijuana use registry, 269 a nonresident qualified patient or caregiver must provide to the 270 department a physician certification or its equivalent issued 271 under the laws of another state, a United States territory, or 272 the District of Columbia which meets all of the following 273 criteria: 274 1. The certification is issued by a physician who is 275 licensed to practice medicine in the jurisdiction where the 276 patient resides and who examined the patient and determined that 277 the patient has a qualifying condition for the medical use of 278 marijuana. 279 2.
The certification specifies the amount and type of 280 marijuana or the type of marijuana delivery device the patient 281 is authorized to use. 282 (
c) The department shall immediately register a nonresident 283 patient or caregiver who meets the requirements of paragraph (b) 284 in the medical marijuana use registry. The department shall 285 revoke the registration of a nonresident patient or caregiver 286 upon notification that the nonresident patient no longer has a 287 physician certification that meets the criteria of paragraph 288 (b). 289 (
d) By January 1, 2022, the department shall adopt rules to 290
Florida Senate - 2021 SB 1820 30-01587A-21 20211820__ Page 11 of 13 CODING: Words stricken are deletions; words underlined are additions. implement this section. 291
Section
Section 381.9885, Florida Statutes, is created 292 to read: 293 381.9885 Medical Marijuana Testing Advisory Council.— 294
(1) The Medical Marijuana Testing Advisory Council, an 295 advisory council as defined in s. 20.03(7), is established 296 within the Department of Health to advise the department on its 297 adoption and ongoing evaluations of marijuana testing policies 298 and standards. The council is adjunct to the department for 299 administrative purposes. 300 (2)(
a) The council shall be composed of all of the 301 following members: 302 1. The State Surgeon General or his or her designee. 303 2. Two members appointed by the Commissioner of 304 Agriculture. 305 3. Two members appointed by the Governor. 306 4. Two members appointed by the President of the Senate. 307 5. Two members appointed by the Speaker of the House of 308 Representatives. 309 6. The dean of research of the University of Florida 310 Institute of Food and Agricultural Sciences or his or her 311 designee. 312 7.
The president of Florida Agricultural and Mechanical 313 University or his or her designee. 314 8. The president or executive director of a statewide 315 marijuana testing association or his or her designee. 316 9. The president or executive director of a medical 317 marijuana trade association that does not primarily consist of 318 owners of marijuana dispensaries or marijuana laboratory testing 319
Florida Senate - 2021 SB 1820 30-01587A-21 20211820__ Page 12 of 13 CODING: Words stricken are deletions; words underlined are additions. facilities or his or her designee. 320 10. One board member of a medical marijuana treatment 321 center licensed in this state. 322 11. One owner of a medical marijuana testing laboratory 323 certified in this state. 324 12. One laboratory scientist who holds a doctoral degree in 325 a related field and who has at least 3 years of experience in 326 marijuana laboratory testing. 327 13. One qualified patient, as defined in s. 381.986, 328 appointed by the Governor. 329 (
b) The council shall annually elect by a two-thirds vote 330 one of the members of the council to serve as the chair. 331 (
c) Members shall serve without compensation but are 332 entitled to reimbursement for per diem and travel expenses as 333 provided in s. 112.061. 334 (3)(
a) The council shall hold its first meeting by October 335 1, 2021, and shall meet as often as necessary, but at least 336 three times each calendar year, upon the call of the chair. 337 (
b) The council meetings may be held via teleconference or 338 other electronic means. 339 (
c) A majority of the council members constitutes a quorum. 340
(4) The council shall make recommendations to the 341 department for its rules relating to marijuana testing 342 laboratories under s. 381.988(3), taking into consideration 343 input from stakeholders and any technological and scientific 344 advancements that, if implemented, would improve the safety and 345 effectiveness of marijuana testing standards in this state. 346
(5) By January 1 of each year, the council shall submit a 347 report of its findings and recommendations to the Governor, the 348
Florida Senate - 2021 SB 1820 30-01587A-21 20211820__ Page 13 of 13 CODING: Words stricken are deletions; words underlined are additions. President of the Senate, and the Speaker of the House of 349 Representatives. 350
Section 4. Paragraph (
c) of subsection (2) of
section 351 456.47, Florida Statutes, is amended to read: 352 456.47 Use of telehealth to provide services.— 353
(2) PRACTICE STANDARDS.— 354 (
c) A telehealth provider may not use telehealth to 355 prescribe a controlled substance unless the controlled substance 356 is prescribed for any of the following: 357 1. The treatment of a psychiatric disorder.; 358 2. Inpatient treatment at a hospital licensed under
chapter 359 395.; 360 3. The treatment of a patient receiving hospice services as 361 defined in s. 400.601.; or 362 4. The treatment of a resident of a nursing home facility 363 as defined in s. 400.021. 364 5. The treatment of a qualified patient as defined in s. 365 381.986. 366