In the last election, the Florida voters passed Amendment 2 legalizing the following:

“Allows medical use of marijuana for individuals with debilitating medical conditions as determined by a licensed Florida physician. Allows caregivers to assist patients’ medical use of marijuana. The Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers. Applies only to Florida law. Does not immunize violations of federal law or any non-medical use, possession or production of marijuana." See summary of Amendment 2

Here locally in Sarasota County and across Florida, physicians have already begun writing prescriptions for medicinal usage of marijuana. This means that Florida employees will be testing positive. It is important to remember that Federal law does not recognize medicinal marijuana as a legal medication See DEA says marijuana is illegal. Federal law still classifies marijuana as a Schedule 1 Drug. 21 U.S.C. § 812. 

In the state of Florida, employees are in an employment-at-will relationship whereby either party may terminate the employment relationship at any time. There are of course several exceptions to this, but most of those exceptions come from D.C. as opposed to Tallahassee.  Under the ADA, "the term 'qualified individual with a disability' shall not include any employee or applicant who is currently engaging in the illegal use of drugs…." 42 U.S.C. § 12114(a).This means that these Federal protections will not recognize marijuana in the workplace.

Further, under its “Limitations” subsection, Amendment 2 explicitly states: 

“Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any place of education or employment, or of smoking medical marijuana in any public place.” Art. 10, Sec. 9(c)(10). 

This language seems really and truly to kill any fight that employees may make to allow marijuana use at work. However, what does this mean for use at home or as a caretaker administering it to a dependent with a debilitative disease? Because of the newness of the amendment, Florida case-law is silent. However, cases involving similar laws in Colorado and Oregon are instructive as to what Florida’s approach is likely to be. 

Colorado:

Coats v. Dish Network LLC, 303 P.3d 147 (Colo. App. Ct. 2013)

The plaintiff, a telephone operator for DISH Network L.L.C, was fired in 2010 after failing a company drug test. He was a medical marijuana patient who had been paralyzed as a teenager in a car crash. The test was performed on a random basis and the employer did not claim Coats was ever impaired on the job.

Coats alleged his termination violated Colorado’s Lawful Activities Statute.  The Statute prohibits an employer from discharging an employee for “engaging in any lawful activity off the premises of the employer during non-working hours,” subject to certain exceptions, under C.R.S. § 24-34- 402.5. The trial court granted DISH’s motion to dismiss Coats’ complaint after determining that the plaintiff’s medical marijuana use was not a “lawful activity” under Colorado law.

Ruling: Despite state laws allowing medical marijuana, Coats' employer was justified in terminating their paralyzed employee who tested positive for marijuana. 

Oregon: 

Washburn v. Columbia Forest Products, 2006 WL 1387967 (Ore. 2006) 

Plaintiff claimed employer terminated his employment unlawfully, discriminating against disabled persons as the plaintiff was a medical marijuana recipient. Oregon Supreme Court concluded that plaintiff was not a "disabled person" within the meaning of the Oregon statute. Concurring opinion noted federal law preempts state employment discrimination law as to the extent that it requires employers to accommodate medical marijuana use.

Ruling: Despite state laws allowing medical marijuana, Washburn's employer was justified in terminating their employee who tested positive for marijuana. 

Conclusion: 

Although it is certainly possible for Florida to take a different road in interpreting  rights to medicinal marijuana use,  it seem highly unlikely at this point that employees who choose to use medicinal marijuana will have their jobs protected.