Florida Senate - 2024                                     SB 166
       By Senator Polsky
       30-00019-24                                            2024166__
    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. 112.23, 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 or contest a
   11         positive marijuana test result within a specified
   12         timeframe; providing procedures that apply when an
   13         employee or a job applicant tests positive for
   14         marijuana; providing a cause of action and damages;
   15         providing construction; providing an effective date.
   17  Be It Enacted by the Legislature of the State of Florida:
   19         Section 1. Section 112.23, Florida Statutes, is created to
   20  read:
   21         112.23Medical 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 the 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)Except as provided in paragraph (b), a public
   60  employer may not take adverse personnel action against an
   61  employee or a job applicant who is a qualified patient for his
   62  or her use of medical marijuana consistent with s. 381.986.
   63         (b)A public employer may take appropriate adverse
   64  personnel action against an employee if the public employer
   65  establishes by a preponderance of the evidence that the lawful
   66  use of medical marijuana is impairing the employee’s ability to
   67  perform his or her job duties or responsibilities.
   68         (c)For purposes of this subsection, a public employer may
   69  consider an employee’s ability to perform his or her job duties
   70  or responsibilities to be impaired if the employee displays
   71  specific, articulable symptoms while working which adversely
   72  affect the performance of his or her duties or responsibilities.
   73         (3)(a)If a public employer has a drug testing policy and
   74  an employee or a job applicant tests positive for marijuana or
   75  its metabolites, the employer must provide to the employee or
   76  job applicant written notice, within 5 business days after
   77  receipt of the positive test result, of his or her right to
   78  provide an explanation for or contest the positive test result.
   79         (b)Within 5 business days after receipt of the written
   80  notice, the employee or job applicant may submit information to
   81  his or her employer explaining or contesting the positive test
   82  result or may request a confirmation test, as defined in s.
   83  112.0455(5)(b), at the expense of the employee or job applicant.
   84         (c)An employee or a job applicant may submit a physician
   85  certification for medical marijuana or a medical marijuana use
   86  registry identification card as part of his or her explanation
   87  for the positive test result.
   88         (d)If an employee or a job applicant fails to provide a
   89  satisfactory explanation for the positive test result, his or
   90  her employer must verify the positive test result with a
   91  confirmation test, at the expense of the employer, before the
   92  employer may take adverse personnel action against the employee
   93  or job applicant.
   94         (4)(a)Notwithstanding s. 381.986(15), a public employee or
   95  a job applicant who has been the subject of an adverse personnel
   96  action in violation of this section may institute a civil action
   97  in a court of competent jurisdiction for relief as set forth in
   98  paragraph (c) within 180 days after the alleged violation.
   99         (b)A public employee or a job applicant may not recover in
  100  any action brought under this subsection if the adverse
  101  personnel action was predicated upon a ground other than his or
  102  her exercise of a right protected by this section.
  103         (c)In any action brought under this subsection, the court
  104  may order any of the following:
  105         1.An injunction restraining continued violation of this
  106  section.
  107         2.Reinstatement of the public employee to the same
  108  position held before the adverse personnel action, or to an
  109  equivalent position.
  110         3.Reinstatement of full fringe benefits and seniority
  111  rights.
  112         4.Compensation for lost wages, benefits, and other
  113  remuneration.
  114         5.Reasonable attorney fees and costs.
  115         6.Any other compensatory damages allowed by general law.
  116         (5)This section does not do any of the following:
  117         (a)Prohibit a public employer from taking adverse
  118  personnel action against an employee for the possession or use
  119  of a controlled substance, as defined in s. 893.02, during
  120  normal business hours or require an employer to commit any act
  121  that would cause the employer to violate federal law or that
  122  would result in the loss of a federal contract or federal
  123  funding.
  124         (b)Require a governmental medical assistance program or
  125  private health insurer to reimburse a person for costs
  126  associated with his or her use of medical marijuana.
  127         (c)Require a public employer to modify the job or working
  128  conditions of a person who engages in the use of medical
  129  marijuana based on the reasonable business purposes of the
  130  employer. However, notwithstanding s. 381.986(15) and except as
  131  provided in paragraph (d), such employer must attempt to make
  132  reasonable accommodations for the medical needs of an employee
  133  who engages in the use of medical marijuana if the employee
  134  holds a valid medical marijuana use registry identification
  135  card, unless the employer can demonstrate that the accommodation
  136  would pose a threat of harm or danger to persons or property,
  137  impose an undue hardship on the employer, or prevent an employee
  138  from fulfilling his or her job responsibilities.
  139         (d)Prohibit a law enforcement agency from adopting
  140  policies and procedures that preclude an employee from engaging
  141  in the use of medical marijuana.
  142         Section 2. This act shall take effect upon becoming a law.