While the economic impact of legalizing medicinal marijuana might be uncertain, the ramifications on the workplace and company policies will be pretty clear, and they will mostly favor the worker who gets a prescription to use the drug, according to a Jacksonville labor lawyer.
Many companies have policies that call for drug testing of employees if they are in an accident while on duty. And many of those policies call for termination if they test positive for marijuana. Bob Riegel, labor and employment attorney at Fowler White Boggs law firm in Jacksonville, said those days are over for anyone who legally obtains marijuana if the measure passes.
“The difference if this passes will be that an employer who requires a drug test … and there’s a positive test for marijuana, the employer is then going to have to ask whether the employee has a medical certification,” Riegel said.
If a certification, prescription or health advisory is produced by the worker, employers won’t be able to terminate that employee, Riegal said. But if there is no prescription or legal permission, employers still will be able to fire if their company policy calls for such action.
Before a potential incident calling for a drug test, Riegel said, there’s no obligation by workers to inform their employers of their condition that requires the marijuana prescription, nor, under The Americans with Disabilities Act, “can the employer ask about it unless under certain circumstances.”
“There’s got to be either some kind of nexus to public safety or a threat to a third party,” Riegel said. “Or there has to be some kind of observable problem with performance.”
While there might be some negative perceptions about marijuana based on social or moral grounds, Riegel said if this ballot initiative passes, Florida employers are going to have to view use of the drug as if it is any other prescription medication.
“It’s actually not any different than other types of prescription medications that may arise in the course of employment situations,” Riegel said.
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