Bill Text: FL S1820 | 2021 | Regular Session | Introduced
Bill Title: Medical Use of Marijuana
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2021-04-30 - Died in Health Policy [S1820 Detail]
Download: Florida-2021-S1820-Introduced.html
Florida Senate - 2021 SB 1820 By Senator Powell 30-01587A-21 20211820__ 1 A bill to be entitled 2 An act relating to medical use of marijuana; creating 3 s. 112.219, F.S.; defining terms; prohibiting an 4 employer from taking adverse personnel action against 5 an employee or a job applicant who is a qualified 6 patient for his or her lawful use of medical 7 marijuana; providing exceptions; requiring an employer 8 to provide written notice of an employee’s or job 9 applicant’s right to explain a positive marijuana test 10 result within a specified timeframe; providing 11 procedures for when an employee or job applicant tests 12 positive for marijuana; providing for a cause of 13 action and damages; providing construction; amending 14 s. 381.986, F.S.; deleting a requirement that certain 15 qualified physician examinations and assessments of a 16 qualified patient be conducted while physically 17 present in the same room as the qualified patient; 18 authorizing certain research institutes and state 19 universities to grow marijuana for research purposes; 20 authorizing certain third-party entities to grow, 21 possess, test, transport, and lawfully dispose of 22 marijuana for research purposes; providing that 23 certain nonresident qualified patient or caregiver 24 identification cards have the same force and effect as 25 those issued in this state; specifying requirements 26 for a nonresident patient or caregiver to be 27 registered in the medical marijuana use registry; 28 requiring the Department of Health to immediately 29 register a patient or caregiver in the registry if 30 they meet such requirements; requiring the department 31 to revoke the registration under certain 32 circumstances; requiring the department to adopt rules 33 by a specified date; creating s. 381.9885, F.S.; 34 establishing the Medical Marijuana Testing Advisory 35 Council within the department for a specified purpose; 36 providing for membership, meetings, and duties of the 37 council; requiring the council to submit annual 38 reports to the Governor and the Legislature by a 39 specified date; amending s. 456.47, F.S.; authorizing 40 telehealth providers to prescribe controlled 41 substances to qualified patients through telehealth 42 under certain circumstances; providing an effective 43 date. 44 45 Be It Enacted by the Legislature of the State of Florida: 46 47 Section 1. Section 112.219, Florida Statutes, is created to 48 read: 49 112.219 Medical Marijuana Public Employee Protection Act.— 50 (1) As used in this section, the term: 51 (a) “Adverse personnel action” means the refusal to hire or 52 employ a qualified patient; the discharge, suspension, transfer, 53 or demotion of a qualified patient; the mandatory retirement of 54 a qualified patient; or discrimination against a qualified 55 patient with respect to compensation, terms, conditions, or 56 privileges of employment. 57 (b) “Employee” has the same meaning as in s. 58 112.0455(5)(g). 59 (c) “Employer” means a state, regional, county, local, or 60 municipal government entity, whether executive, judicial, or 61 legislative; an official, an officer, a department, a division, 62 a bureau, a commission, an authority, or a political subdivision 63 thereof; or a public school, community college, or state 64 university that employs individuals for salary, wages, or other 65 remuneration. 66 (d) “Job applicant” has the same meaning as in s. 67 112.0455(5)(f). 68 (e) “Law enforcement agency” has the same meaning as in s. 69 908.102. 70 (f) “Physician certification” has the same meaning as in s. 71 381.986. 72 (g) “Qualified patient” has the same meaning as in s. 73 381.986. 74 (h) “Undue hardship” means an action that involves 75 significant difficulty or expense, when considered in light of 76 the following factors: 77 1. The nature, cost, and duration of the accommodation. 78 2. The overall financial resources of the employer. 79 3. The overall size of the employer’s business with respect 80 to the number of employees and the number, type, and location of 81 the employer’s facilities. 82 4. The effect on expenses and resources or any other 83 impacts of such accommodation upon the operation of the 84 employer’s business. 85 (2) An employer may not take adverse personnel action 86 against an employee or a job applicant who is a qualified 87 patient for his or her use of medical marijuana consistent with 88 s. 381.986. However, an employer may take appropriate adverse 89 personnel action against an employee if the employer establishes 90 by a preponderance of the evidence that the lawful use of 91 medical marijuana is impairing the employee’s ability to perform 92 his or her job responsibilities. For purposes of this 93 subsection, an employer may consider an employee’s ability to 94 perform his or her job responsibilities to be impaired if the 95 employee displays specific articulable symptoms while working 96 which decrease or lessen the performance of his or her duties or 97 tasks. 98 (3)(a) If an employer has a drug testing policy and an 99 employee or a job applicant tests positive for marijuana or its 100 metabolites, the employer must provide written notice within 5 101 business days after receipt of the positive test result to the 102 employee or job applicant of his or her right to provide an 103 explanation for the positive test result. 104 (b) Within 5 business days after receipt of the written 105 notice, the employee or job applicant may submit information to 106 the employer explaining or contesting the positive test result 107 or may request a confirmation test, as defined in s. 108 112.0455(5)(d), at the expense of the employee or job applicant. 109 (c) An employee or a job applicant may submit a physician 110 certification for medical marijuana or a medical marijuana use 111 registry identification card as part of his or her explanation 112 for the positive test result. 113 (d) If an employee or a job applicant fails to provide a 114 satisfactory explanation for the positive test result, an 115 employer must verify the positive test result with a 116 confirmation test, at the expense of the employer, before the 117 employer may take adverse personnel action against the employee 118 or job applicant. 119 (4)(a) Notwithstanding s. 381.986(16), an employee or a job 120 applicant who has been the subject of an adverse personnel 121 action in violation of this section may institute a civil action 122 in a court of competent jurisdiction for relief as set forth in 123 paragraph (c) within 180 days after the alleged violation. 124 (b) An employee or a job applicant may not recover damages 125 in any action brought under this subsection if the adverse 126 personnel action was predicated upon a ground other than the 127 employee’s or job applicant’s exercise of a right protected by 128 this section. 129 (c) In any action brought under this subsection, the court 130 may order any of the following: 131 1. An injunction against continued violation of this 132 section. 133 2. Reinstatement of the employee to the same position held 134 before the adverse personnel action, or to an equivalent 135 position. 136 3. Reinstatement of full fringe benefits and seniority 137 rights. 138 4. Compensation for lost wages, benefits, and other 139 remuneration. 140 5. Reasonable attorney fees and costs. 141 6. Any other compensatory damages allowable by general law. 142 (5) This section does not do any of the following: 143 (a) Prohibit an employer from taking adverse personnel 144 action against an employee for the possession or use of a 145 controlled substance, as defined in s. 893.02, during normal 146 business hours or require an employer to commit any act that 147 would cause the employer to violate federal law or that would 148 result in the loss of a federal contract or federal funding. 149 (b) Require a government medical assistance program or 150 private health insurer to reimburse a person for costs 151 associated with the use of medical marijuana. 152 (c) Require an employer to modify the job or working 153 conditions of a person who engages in the use of medical 154 marijuana, based on the reasonable business purposes of the 155 employer. However, notwithstanding s. 381.986(16) and except as 156 provided in paragraph (d), the employer must attempt to make 157 reasonable accommodations for the medical needs of an employee 158 who engages in the use of medical marijuana if the employee 159 holds a valid medical marijuana use identification card, unless 160 the employer can demonstrate that the accommodation would pose a 161 threat of harm or danger to persons or property, impose an undue 162 hardship on the employer, or prohibit an employee from 163 fulfilling his or her job responsibilities. 164 (d) Prohibit a law enforcement agency from adopting 165 policies and procedures that preclude an employee from engaging 166 in the use of medical marijuana. 167 Section 2. Present subsections (15) through (17) of section 168 381.986, Florida Statutes, are redesignated as subsections (16) 169 through (18), respectively, a new subsection (15) is added to 170 that section, and paragraph (a) of subsection (4) and paragraph 171 (h) of subsection (14) of that section are amended, to read: 172 381.986 Medical use of marijuana.— 173 (4) PHYSICIAN CERTIFICATION.— 174 (a) A qualified physician may issue a physician 175 certification only if the qualified physician: 176 1. Conducted ana physicalexaminationwhile physically177present in the same room as the patientand a full assessment of 178 the medical history of the patient. 179 2. Diagnosed the patient with at least one qualifying 180 medical condition. 181 3. Determined that the medical use of marijuana would 182 likely outweigh the potential health risks for the patient, and 183 such determination must be documented in the patient’s medical 184 record. If a patient is younger than 18 years of age, a second 185 physician must concur with this determination, and such 186 concurrence must be documented in the patient’s medical record. 187 4. Determined whether the patient is pregnant and 188 documented such determination in the patient’s medical record. A 189 physician may not issue a physician certification, except for 190 low-THC cannabis, to a patient who is pregnant. 191 5. Reviewed the patient’s controlled drug prescription 192 history in the prescription drug monitoring program database 193 established pursuant to s. 893.055. 194 6. Reviews the medical marijuana use registry and confirmed 195 that the patient does not have an active physician certification 196 from another qualified physician. 197 7. Registers as the issuer of the physician certification 198 for the named qualified patient on the medical marijuana use 199 registry in an electronic manner determined by the department, 200 and: 201 a. Enters into the registry the contents of the physician 202 certification, including the patient’s qualifying condition and 203 the dosage not to exceed the daily dose amount determined by the 204 department, the amount and forms of marijuana authorized for the 205 patient, and any types of marijuana delivery devices needed by 206 the patient for the medical use of marijuana. 207 b. Updates the registry within 7 days after any change is 208 made to the original physician certification to reflect such 209 change. 210 c. Deactivates the registration of the qualified patient 211 and the patient’s caregiver when the physician no longer 212 recommends the medical use of marijuana for the patient. 213 8. Obtains the voluntary and informed written consent of 214 the patient for medical use of marijuana each time the qualified 215 physician issues a physician certification for the patient, 216 which shall be maintained in the patient’s medical record. The 217 patient, or the patient’s parent or legal guardian if the 218 patient is a minor, must sign the informed consent acknowledging 219 that the qualified physician has sufficiently explained its 220 content. The qualified physician must use a standardized 221 informed consent form adopted in rule by the Board of Medicine 222 and the Board of Osteopathic Medicine, which must include, at a 223 minimum, information related to: 224 a. The Federal Government’s classification of marijuana as 225 a Schedule I controlled substance. 226 b. The approval and oversight status of marijuana by the 227 Food and Drug Administration. 228 c. The current state of research on the efficacy of 229 marijuana to treat the qualifying conditions set forth in this 230 section. 231 d. The potential for addiction. 232 e. The potential effect that marijuana may have on a 233 patient’s coordination, motor skills, and cognition, including a 234 warning against operating heavy machinery, operating a motor 235 vehicle, or engaging in activities that require a person to be 236 alert or respond quickly. 237 f. The potential side effects of marijuana use, including 238 the negative health risks associated with smoking marijuana. 239 g. The risks, benefits, and drug interactions of marijuana. 240 h. That the patient’s de-identified health information 241 contained in the physician certification and medical marijuana 242 use registry may be used for research purposes. 243 (14) EXCEPTIONS TO OTHER LAWS.— 244 (h) Notwithstanding s. 893.13, s. 893.135, s. 893.147, or 245 any other provision of law, but subject to the requirements of 246 this section, a research institute established by a public 247 postsecondary educational institution, such as the H. Lee 248 Moffitt Cancer Center and Research Institute, Inc., established 249 under s. 1004.43;,ora state university that has achieved the 250 preeminent state research university designation under s. 251 1001.7065; or a third-party entity that is licensed by the 252 federal Drug Enforcement Administration and is under contract 253 with such a research institute or state university may grow, 254 possess, test, transport, and lawfully dispose of marijuana for 255 research purposes as provided by this section. 256 (15) RECIPROCITY.— 257 (a) Notwithstanding any law to the contrary, but subject to 258 the requirements of this subsection, a qualified patient 259 identification card or a caregiver identification card, or the 260 equivalent of either, issued under the laws of another state, a 261 United States territory, or the District of Columbia which 262 authorizes a nonresident patient or caregiver to receive 263 marijuana or a marijuana delivery device for medical use by the 264 nonresident patient with a qualifying medical condition or which 265 authorizes a person to assist with the medical use of marijuana 266 by the nonresident patient has the same force and effect as a 267 medical marijuana use registry identification card issued by the 268 department under this section. 269 (b) To be registered in the medical marijuana use registry, 270 a nonresident qualified patient or caregiver must provide to the 271 department a physician certification or its equivalent issued 272 under the laws of another state, a United States territory, or 273 the District of Columbia which meets all of the following 274 criteria: 275 1. The certification is issued by a physician who is 276 licensed to practice medicine in the jurisdiction where the 277 patient resides and who examined the patient and determined that 278 the patient has a qualifying condition for the medical use of 279 marijuana. 280 2. The certification specifies the amount and type of 281 marijuana or the type of marijuana delivery device the patient 282 is authorized to use. 283 (c) The department shall immediately register a nonresident 284 patient or caregiver who meets the requirements of paragraph (b) 285 in the medical marijuana use registry. The department shall 286 revoke the registration of a nonresident patient or caregiver 287 upon notification that the nonresident patient no longer has a 288 physician certification that meets the criteria of paragraph 289 (b). 290 (d) By January 1, 2022, the department shall adopt rules to 291 implement this section. 292 Section 3. Section 381.9885, Florida Statutes, is created 293 to read: 294 381.9885 Medical Marijuana Testing Advisory Council.— 295 (1) The Medical Marijuana Testing Advisory Council, an 296 advisory council as defined in s. 20.03(7), is established 297 within the Department of Health to advise the department on its 298 adoption and ongoing evaluations of marijuana testing policies 299 and standards. The council is adjunct to the department for 300 administrative purposes. 301 (2)(a) The council shall be composed of all of the 302 following members: 303 1. The State Surgeon General or his or her designee. 304 2. Two members appointed by the Commissioner of 305 Agriculture. 306 3. Two members appointed by the Governor. 307 4. Two members appointed by the President of the Senate. 308 5. Two members appointed by the Speaker of the House of 309 Representatives. 310 6. The dean of research of the University of Florida 311 Institute of Food and Agricultural Sciences or his or her 312 designee. 313 7. The president of Florida Agricultural and Mechanical 314 University or his or her designee. 315 8. The president or executive director of a statewide 316 marijuana testing association or his or her designee. 317 9. The president or executive director of a medical 318 marijuana trade association that does not primarily consist of 319 owners of marijuana dispensaries or marijuana laboratory testing 320 facilities or his or her designee. 321 10. One board member of a medical marijuana treatment 322 center licensed in this state. 323 11. One owner of a medical marijuana testing laboratory 324 certified in this state. 325 12. One laboratory scientist who holds a doctoral degree in 326 a related field and who has at least 3 years of experience in 327 marijuana laboratory testing. 328 13. One qualified patient, as defined in s. 381.986, 329 appointed by the Governor. 330 (b) The council shall annually elect by a two-thirds vote 331 one of the members of the council to serve as the chair. 332 (c) Members shall serve without compensation but are 333 entitled to reimbursement for per diem and travel expenses as 334 provided in s. 112.061. 335 (3)(a) The council shall hold its first meeting by October 336 1, 2021, and shall meet as often as necessary, but at least 337 three times each calendar year, upon the call of the chair. 338 (b) The council meetings may be held via teleconference or 339 other electronic means. 340 (c) A majority of the council members constitutes a quorum. 341 (4) The council shall make recommendations to the 342 department for its rules relating to marijuana testing 343 laboratories under s. 381.988(3), taking into consideration 344 input from stakeholders and any technological and scientific 345 advancements that, if implemented, would improve the safety and 346 effectiveness of marijuana testing standards in this state. 347 (5) By January 1 of each year, the council shall submit a 348 report of its findings and recommendations to the Governor, the 349 President of the Senate, and the Speaker of the House of 350 Representatives. 351 Section 4. Paragraph (c) of subsection (2) of section 352 456.47, Florida Statutes, is amended to read: 353 456.47 Use of telehealth to provide services.— 354 (2) PRACTICE STANDARDS.— 355 (c) A telehealth provider may not use telehealth to 356 prescribe a controlled substance unless the controlled substance 357 is prescribed for any of the following: 358 1. The treatment of a psychiatric disorder.;359 2. Inpatient treatment at a hospital licensed under chapter 360 395.;361 3. The treatment of a patient receiving hospice services as 362 defined in s. 400.601.; or363 4. The treatment of a resident of a nursing home facility 364 as defined in s. 400.021. 365 5. The treatment of a qualified patient as defined in s. 366 381.986. 367 Section 5. This act shall take effect upon becoming a law.