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. 16 17 Be It Enacted by the Legislature of the State of Florida: 18 19 Section 1. Section 112.219, Florida Statutes, is created to 20 read: 21 112.219 Medical 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.