Bill Text: FL S0962 | 2020 | Regular Session | Introduced


Bill Title: Medical Marijuana Employee Protection

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2020-03-14 - Died in Governmental Oversight and Accountability [S0962 Detail]

Download: Florida-2020-S0962-Introduced.html
       Florida Senate - 2020                                     SB 962
       
       
        
       By Senator Berman
       
       
       
       
       
       31-00557A-20                                           2020962__
    1                        A bill to be entitled                      
    2         An act relating to medical marijuana employee
    3         protection; creating ss. 112.219 and 448.111, F.S.;
    4         providing definitions; prohibiting an employer from
    5         taking adverse personnel action against an employee or
    6         job applicant who is a qualified patient using medical
    7         marijuana; providing exceptions; requiring an employer
    8         to provide written notice to an employee or job
    9         applicant who tests positive for marijuana of his or
   10         her right to explain the positive test result;
   11         providing procedures when an employee or job applicant
   12         tests positive for marijuana; providing a cause of
   13         action and damages; providing construction; providing
   14         an effective date.
   15          
   16  Be It Enacted by the Legislature of the State of Florida:
   17  
   18         Section 1. Section 112.219, Florida Statutes, is created to
   19  read:
   20         112.219Medical Marijuana Public Employee Protection Act.—
   21         (1)As used in this section, the term:
   22         (a)“Adverse personnel action” means the refusal to hire or
   23  employ a qualified patient; the discharge, suspension, transfer,
   24  or demotion of a qualified patient; the mandatory retirement of
   25  a qualified patient; or the discrimination of a qualified
   26  patient with respect to compensation, terms, conditions, or
   27  privileges of employment.
   28         (b)“Employee” has the same meaning as in s. 112.0455.
   29         (c)“Employer” means a state, regional, county, local, or
   30  municipal government entity, whether executive, judicial, or
   31  legislative; an official, officer, department, division, bureau,
   32  commission, authority, or political subdivision therein; or a
   33  public school, community college, or state university that
   34  employs individuals for salary, wages, or other remuneration.
   35         (d)“Job applicant” has the same meaning as in s. 112.0455.
   36         (e)“Law enforcement agency” has the same meaning as in s.
   37  908.102.
   38         (f)“Physician certification” has the same meaning as in s.
   39  381.986.
   40         (g)“Qualified patient” has the same meaning as in s.
   41  381.986.
   42         (h)“Safety-sensitive” means tasks or duties of a job which
   43  the employer reasonably believes could affect the safety and
   44  health of the employee performing the tasks or duties or other
   45  persons, including, but not limited to, any of the following:
   46         1.The handling, packaging, processing, storage, disposal,
   47  or transport of hazardous materials.
   48         2.The operation of a motor vehicle, equipment, machinery,
   49  or power tools.
   50         3.The repair, maintenance, or monitoring of any equipment,
   51  machinery, or manufacturing process, the malfunction or
   52  disruption of which could result in injury or property damage.
   53         4.The performance of firefighting duties.
   54         5.The operation, maintenance, or oversight of critical
   55  services and infrastructure, including, but not limited to,
   56  electric, gas, and water utilities or power generation or
   57  distribution.
   58         6.The extraction, compression, processing, manufacturing,
   59  handling, packaging, storage, disposal, treatment, or transport
   60  of potentially volatile, flammable, combustible materials,
   61  elements, chemicals, or any other highly regulated component.
   62         7.The dispensing of pharmaceuticals.
   63         8.The carrying of a firearm.
   64         9.The direct care of a patient or child.
   65         (i)“Undue hardship” means an action requiring significant
   66  difficulty or expense, when considered in light of the following
   67  factors:
   68         1.The nature, cost, and duration of the accommodation.
   69         2.The overall financial resources of the employer.
   70         3.The overall size of the business of the employer with
   71  respect to the number of employees and the number, type, and
   72  location of the employer’s facilities.
   73         4.The effect on expenses and resources or any other
   74  impacts of such accommodation upon the operation of the
   75  employer.
   76         (2)An employer may not take adverse personnel action
   77  against an employee or job applicant who is a qualified patient
   78  using medical marijuana consistent with s. 381.986, unless the
   79  position held by the employee or sought by the job applicant is
   80  one involving safety-sensitive job duties. However, an employer
   81  may take appropriate adverse personnel action against any
   82  employee if the employer establishes by a preponderance of the
   83  evidence that the lawful use of medical marijuana is impairing
   84  the employee’s ability to perform his or her job
   85  responsibilities. For purposes of this subsection, an employer
   86  may consider an employee’s ability to perform his or her job
   87  responsibilities to be impaired if the employee displays
   88  specific articulable symptoms while working which decrease or
   89  lessen the performance of his or her duties or tasks.
   90         (3)(a)If an employer has a drug testing policy and an
   91  employee or job applicant tests positive for marijuana or its
   92  metabolites, the employer must provide written notice within 5
   93  business days after receipt of the positive test result to the
   94  employee or job applicant of his or her right to provide an
   95  explanation for the positive test result.
   96         (b)Within 5 business days after receipt of the written
   97  notice, the employee or job applicant may submit information to
   98  an employer explaining or contesting the positive test result or
   99  may request a confirmation test, as defined in s. 112.0455, at
  100  the expense of the employee or job applicant.
  101         (c)An employee or a job applicant may submit a physician
  102  certification for medical marijuana or a medical marijuana use
  103  registry identification card as part of his or her explanation
  104  for the positive test result.
  105         (d)If an employee or a job applicant fails to provide a
  106  satisfactory explanation for the positive test result, an
  107  employer must verify the positive test result with a
  108  confirmation test, at the expense of the employer, before the
  109  employer may take adverse personnel action against the employee
  110  or job applicant.
  111         (4)(a)Notwithstanding s. 381.986(15), an employee or a job
  112  applicant who has been the subject of an adverse personnel
  113  action in violation of this section may institute a civil action
  114  in a court of competent jurisdiction for relief as set forth in
  115  paragraph (c) within 180 days after the alleged violation.
  116         (b)An employee or a job applicant may not recover in any
  117  action brought under this subsection if the adverse personnel
  118  action was predicated upon a ground other than the employee’s or
  119  job applicant’s exercise of a right protected by this section.
  120         (c)In any action brought under this subsection, the court
  121  may order any of the following:
  122         1.An injunction restraining continued violation of this
  123  section.
  124         2.Reinstatement of the employee to the same position held
  125  before the adverse personnel action, or to an equivalent
  126  position.
  127         3.Reinstatement of full fringe benefits and seniority
  128  rights.
  129         4.Compensation for lost wages, benefits, and other
  130  remuneration.
  131         5.Reasonable attorney fees and costs.
  132         6.Any other compensatory damages allowable by general law.
  133         (5)This section does not:
  134         (a)Prohibit an employer from taking adverse personnel
  135  action against an employee for the possession or use of a
  136  controlled substance, as defined in s. 893.02, during normal
  137  business hours or require an employer to commit any act that
  138  would cause the employer to violate federal law or that would
  139  result in the loss of a federal contract or federal funding;
  140         (b)Require a government medical assistance program or
  141  private health insurer to reimburse a person for costs
  142  associated with the use of medical marijuana; or
  143         (c)1.Require an employer to modify the job or working
  144  conditions of a person who engages in the use of medical
  145  marijuana based on the reasonable business purposes of the
  146  employer. However, notwithstanding s. 381.986(15) and except as
  147  provided in subparagraph 2., the employer must attempt to make
  148  reasonable accommodations for the medical needs of an employee
  149  who engages in the use of medical marijuana if the employee
  150  holds a valid medical marijuana use identification card, unless
  151  the employer can demonstrate that the accommodation would pose a
  152  threat of harm or danger to persons or property, impose an undue
  153  hardship on the employer, or prohibit an employee from
  154  fulfilling his or her job responsibilities.
  155         2.Prohibit a law enforcement agency from adopting policies
  156  and procedures that preclude an employee from engaging in the
  157  use of medical marijuana.
  158         Section 2. Section 448.111, Florida Statutes, is created to
  159  read:
  160         448.111Medical Marijuana Employee Protection Act.—
  161         (1)As used in this section, the term:
  162         (a)“Adverse personnel action” means the refusal to hire or
  163  employ a qualified patient; the discharge, suspension, transfer,
  164  or demotion of a qualified patient; the mandatory retirement of
  165  a qualified patient; or the discrimination of a qualified
  166  patient with respect to compensation, terms, conditions, or
  167  privileges of employment.
  168         (b)“Employee” has the same meaning as in s. 448.101.
  169         (c)“Employer” means a private individual, firm,
  170  partnership, institution, corporation, or association that
  171  employs individuals for salary, wages, or other remuneration.
  172         (d)“Job applicant” has the same meaning as in s. 440.102.
  173         (e)“Law enforcement agency” has the same meaning as in s.
  174  908.102.
  175         (f)“Physician certification” has the same meaning as in s.
  176  381.986.
  177         (g)“Qualified patient” has the same meaning as in s.
  178  381.986.
  179         (h)“Safety-sensitive” means tasks or duties of a job which
  180  the employer reasonably believes could affect the safety and
  181  health of the employee performing the tasks or duties or other
  182  persons, including, but not limited to, any of the following:
  183         1.The handling, packaging, processing, storage, disposal,
  184  or transport of hazardous materials.
  185         2.The operation of a motor vehicle, equipment, machinery,
  186  or power tools.
  187         3.The repair, maintenance, or monitoring of any equipment,
  188  machinery, or manufacturing process, the malfunction or
  189  disruption of which could result in injury or property damage.
  190         4.The performance of firefighting duties.
  191         5.The operation, maintenance, or oversight of critical
  192  services and infrastructure, including, but not limited to,
  193  electric, gas, and water utilities or power generation or
  194  distribution.
  195         6.The extraction, compression, processing, manufacturing,
  196  handling, packaging, storage, disposal, treatment, or transport
  197  of potentially volatile, flammable, combustible materials,
  198  elements, chemicals, or any other highly regulated component.
  199         7.The dispensing of pharmaceuticals.
  200         8.The carrying of a firearm.
  201         9.The direct care of a patient or child.
  202         (i)“Undue hardship” means an action requiring significant
  203  difficulty or expense, when considered in light of the following
  204  factors:
  205         1.The nature, cost, and duration of the accommodation.
  206         2.The overall financial resources of the employer.
  207         3.The overall size of the business of the employer with
  208  respect to the number of employees and the number, type, and
  209  location of the employer’s facilities.
  210         4.The effect on expenses and resources or any other
  211  impacts of such accommodation upon the operation of the
  212  employer.
  213         (2)An employer may not take adverse personnel action
  214  against an employee or a job applicant who is a qualified
  215  patient using medical marijuana consistent with s. 381.986,
  216  unless the position held by the employee or sought by the job
  217  applicant is one involving safety-sensitive job duties. However,
  218  an employer may take appropriate adverse personnel action
  219  against any employee if the employer establishes by a
  220  preponderance of the evidence that the lawful use of medical
  221  marijuana is impairing the employee’s ability to perform his or
  222  her job responsibilities. For purposes of this subsection, an
  223  employer may consider an employee’s ability to perform his or
  224  her job responsibilities to be impaired if the employee displays
  225  specific articulable symptoms while working which decrease or
  226  lessen the performance of his or her duties or tasks.
  227         (3)(a)If an employer has a drug testing policy and an
  228  employee or a job applicant tests positive for marijuana or its
  229  metabolites, the employer must provide written notice within 5
  230  business days after receipt of the positive test result to the
  231  employee or job applicant of his or her right to provide an
  232  explanation for the positive test result.
  233         (b)Within 5 business days after receipt of the written
  234  notice, the employee or job applicant may submit information to
  235  an employer explaining or contesting the positive test result or
  236  may request a confirmation test, as defined in s. 440.102, at
  237  the expense of the employee or job applicant.
  238         (c)An employee or a job applicant may submit a physician
  239  certification for medical marijuana or a medical marijuana use
  240  registry identification card as part of his or her explanation
  241  for the positive test result.
  242         (d)If an employee or a job applicant fails to provide a
  243  satisfactory explanation for the positive test result, an
  244  employer must verify the positive test result with a
  245  confirmation test, at the expense of the employer, before the
  246  employer may take adverse personnel action against the employee
  247  or job applicant.
  248         (4)(a)Notwithstanding s. 381.986(15), an employee or a job
  249  applicant who has been the subject of an adverse personnel
  250  action in violation of this section may institute a civil action
  251  in a court of competent jurisdiction for relief as set forth in
  252  paragraph (c) within 180 days after the alleged violation.
  253         (b)An employee or a job applicant may not recover in any
  254  action brought under this subsection if the adverse personnel
  255  action was predicated upon a ground other than the employee’s or
  256  job applicant’s exercise of a right protected by this section.
  257         (c)In any action brought under this subsection, the court
  258  may order any of the following:
  259         1.An injunction restraining continued violation of this
  260  section.
  261         2.Reinstatement of the employee to the same position held
  262  before the adverse personnel action, or to an equivalent
  263  position.
  264         3.Reinstatement of full fringe benefits and seniority
  265  rights.
  266         4.Compensation for lost wages, benefits, and other
  267  remuneration.
  268         5.Reasonable attorney fees and costs.
  269         6.Any other compensatory damages allowable by general law.
  270         (5)This section does not:
  271         (a)Prohibit an employer from taking adverse personnel
  272  action against an employee for the possession or use of a
  273  controlled substance, as defined in s. 893.02, during normal
  274  business hours or require an employer to commit any act that
  275  would cause the employer to violate federal law or that would
  276  result in the loss of a federal contract or federal funding;
  277         (b)Require a government medical assistance program or
  278  private health insurer to reimburse a person for costs
  279  associated with the use of medical marijuana; or
  280         (c)1.Require an employer to modify the job or working
  281  conditions of a person who engages in the use of medical
  282  marijuana based on the reasonable business purposes of the
  283  employer. However, notwithstanding s. 381.986(15) and except as
  284  provided in subparagraph 2., the employer must attempt to make
  285  reasonable accommodations for the medical needs of an employee
  286  who engages in the use of medical marijuana if the employee
  287  holds a valid medical marijuana use identification card, unless
  288  the employer can demonstrate that the accommodation would pose a
  289  threat of harm or danger to persons or property, impose an undue
  290  hardship on the employer, or prohibit an employee from
  291  fulfilling his or her job responsibilities.
  292         2.Prohibit a law enforcement agency from adopting policies
  293  and procedures that preclude an employee from engaging in the
  294  use of medical marijuana.
  295         Section 3. This act shall take effect upon becoming a law.

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