Katelyn Baker
Well-Known Member
In 2014, a Florida law was passed legalizing the use of a low THC, non-euphoric marijuana oil called cannabidiol, or CBD, to qualified patients with cancer, muscle spasms and intractable seizures. In March 2016, the passage of House Bill 307 on the medical use of marijuana expanded the state's low-THC medical marijuana law by allowing products manufactured from cannabis strains with higher levels of THC to be available to patients with terminally ill conditions.
Florida's medical marijuana constitutional amendment went into effect on Jan. 3. Though the amendment is now effective, much still needs to be accomplished in Tallahassee before patients can feel comfortable to legally acquire their medicine and before businesses can contemplate participating in the cannabis industry.
The amendment states that by June 3, Florida's Department of Health must promulgate regulations regarding procedures for the registration, not licensing, of medical marijuana treatment centers, or MMTCs, not dispensaries, that include "procedures for the issuance, renewal, suspension and revocation of registration, and standards to ensure proper security, record keeping, testing, labeling, inspection and safety." The amendment also states that by Sept. 3 the DOH intends to begin to issue qualifying patients and caregivers identification cards and register the MMTCs.
The DOH's Office of Compassionate Use oversees the regulatory infrastructure for medical cannabis in Florida. Its homepage states, "Amendment 2 and the expanded qualifying medical conditions will become effective on Jan. 3. Section 381.986 F.S. remains in effect, and the Florida Department of Health, physicians, dispensing organizations and patients remain bound by existing law and rule. Following Amendment 2's effective date, the department is directed to promulgate rules to implement Amendment 2 within six months and to implement those regulations within nine months."
While the DOH acknowledges that Amendment 2 and its expanded qualifying medical conditions became effective Jan. 3, it is also mentioned that the DOH, physicians, dispensing organizations and patients remain bound by existing law and rules. There have been many Floridians scratching their heads and asking valid questions since the DOH acknowledged Amendment 2's qualifying condition on Jan. 3.
For example, could doctors who have completed the eight-hour course and examination provided by the Florida Medical Association and the Florida Osteopathic Medical Association "order" or "recommend" medical marijuana to patients who they have had a 90-day relationship with but who fall outside the scope of current laws? Similarly, should the state's licensed dispensaries be able to sell high THC cannabis to patients who fall under the amendment's qualifying conditions and who are not terminally ill?
These unknowns were finally answered Jan. 11 after a state house health quality subcommittee meeting, which included testimony from the DOH's top cannabis personnel, director Christian Bax. Bax told reporters it's up to the patient's doctor to decide whether or not they should be able to obtain medical marijuana under the amendment's qualifying conditions. He also said if the patient did indeed receive a medical marijuana order, that order should be filled.
This too has many Floridians scratching their heads. It appears that the DOH is cherry-picking language from the newly passed amendment, which cannot be implemented until the rules and regulations are promulgated, along with previous passed legislation. Since the regulations have not been developed and rolled out for doctors to follow regarding ordering marijuana for their patients, are these physicians boxing themselves into a potentially dangerous liability corner? Bax also said doctors should follow both the current law and the constitutional amendment. Again, I ask how can doctors follow the language of the amendment if the rules for it have not yet been devised?
Workplace Issues
Now that the amendment is enacted, employers will undoubtedly be faced with many questions and issues on how this new legal medicine will affect the workplace. Although the amendment's language provides minimal insight into its potential impact on employers, it does state, "Nothing in this section shall require any accommodation of any onsite medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place."
The authors of Amendment 2 expressed in their analysis of intent, "The amendment does not require that the smoking of medical marijuana be allowed in public, unlike the proper use of medical marijuana in a private place, which is not illegal. This provision also makes clear that the amendment does not change current laws relating to the use of marijuana in schools, correction institutions and detention facilities." The law does not require any accommodation of onsite medical use of marijuana in any place of employment. Since the amendment only addresses "smoking" specifically, the Florida Legislature and/or local governments may establish restrictions on other forms of consumption of medical marijuana in public places.
Many of our Florida clients are sharing their concerns of how the legalization of medical marijuana will affect their employment policies, in particular, whether they will have to provide a reasonable accommodation under the American with Disabilities Act. If an employee has a "debilitating medical condition," would the employer be required to allow such employee a break to use medical marijuana for their condition? Over the years the courts have addressed this and found that employers are not obligated to accommodate the use of medical marijuana in the workplace. This is mainly due to the fact that according to the ADA, a person using illegal drugs is not a "qualified individual with a disability" and therefore is not protected under the ADA. Despite medical marijuana's newfound legality in Florida, we cannot disregard the fact that marijuana remains illegal under federal law and therefore technically illegal under the ADA.
Zero Tolerance
Current standard drug testing cannot determine how much or how long THC or CBD has been in the body. THC is accumulated in fat reserves throughout the body and therefore can be stored for as long as 90 days. Employers in many states with legalized marijuana, who use nondiscriminatory zero-drug policies, can still terminate or refuse to hire employees who fail a drug test, even if their medical marijuana was ordered by their physician and purchased legally.
The use of medical marijuana in the workplace raises safety concerns for employers. The Occupational Safety and Health Administration requires employers to maintain a work environment "free of recognized hazards." It is critical for employers who employ individuals responsible for safety-sensitive tasks, such as construction and heavy equipment operations, to reevaluate their current drug policies. The use of medical marijuana may be deemed medically necessary by a physician but not in line with an employer's zero-tolerance policy.
Florida patients with qualifying medical conditions listed under the language of Amendment 2 may be able to obtain their medical marijuana medicine today. The many unanswered questions surrounding doctors, patients and dispensaries will hopefully be answered by the deadline of June 3, when the DOH needs to draft rules and regulations for the process of who, what and where medical marijuana can be grown and sold, as well as the commencement of the registration process for patients and MMTCs by Sept. 3.
Patients, like my daughter, need immediate access to all varieties medical marijuana. At the same time, the doctors who order it, the dispensaries that sell it and the patients who use it should not wonder whether or not they are breaking any state laws.
News Moderator: Katelyn Baker 420 MAGAZINE ®
Full Article: How Will Florida's Medical Marijuana Amendment Affect The Workplace?
Author: Seth A. Hyman
Contact: 877-256-2472
Photo Credit: Morgue
Website: Daily Business Review
Florida's medical marijuana constitutional amendment went into effect on Jan. 3. Though the amendment is now effective, much still needs to be accomplished in Tallahassee before patients can feel comfortable to legally acquire their medicine and before businesses can contemplate participating in the cannabis industry.
The amendment states that by June 3, Florida's Department of Health must promulgate regulations regarding procedures for the registration, not licensing, of medical marijuana treatment centers, or MMTCs, not dispensaries, that include "procedures for the issuance, renewal, suspension and revocation of registration, and standards to ensure proper security, record keeping, testing, labeling, inspection and safety." The amendment also states that by Sept. 3 the DOH intends to begin to issue qualifying patients and caregivers identification cards and register the MMTCs.
The DOH's Office of Compassionate Use oversees the regulatory infrastructure for medical cannabis in Florida. Its homepage states, "Amendment 2 and the expanded qualifying medical conditions will become effective on Jan. 3. Section 381.986 F.S. remains in effect, and the Florida Department of Health, physicians, dispensing organizations and patients remain bound by existing law and rule. Following Amendment 2's effective date, the department is directed to promulgate rules to implement Amendment 2 within six months and to implement those regulations within nine months."
While the DOH acknowledges that Amendment 2 and its expanded qualifying medical conditions became effective Jan. 3, it is also mentioned that the DOH, physicians, dispensing organizations and patients remain bound by existing law and rules. There have been many Floridians scratching their heads and asking valid questions since the DOH acknowledged Amendment 2's qualifying condition on Jan. 3.
For example, could doctors who have completed the eight-hour course and examination provided by the Florida Medical Association and the Florida Osteopathic Medical Association "order" or "recommend" medical marijuana to patients who they have had a 90-day relationship with but who fall outside the scope of current laws? Similarly, should the state's licensed dispensaries be able to sell high THC cannabis to patients who fall under the amendment's qualifying conditions and who are not terminally ill?
These unknowns were finally answered Jan. 11 after a state house health quality subcommittee meeting, which included testimony from the DOH's top cannabis personnel, director Christian Bax. Bax told reporters it's up to the patient's doctor to decide whether or not they should be able to obtain medical marijuana under the amendment's qualifying conditions. He also said if the patient did indeed receive a medical marijuana order, that order should be filled.
This too has many Floridians scratching their heads. It appears that the DOH is cherry-picking language from the newly passed amendment, which cannot be implemented until the rules and regulations are promulgated, along with previous passed legislation. Since the regulations have not been developed and rolled out for doctors to follow regarding ordering marijuana for their patients, are these physicians boxing themselves into a potentially dangerous liability corner? Bax also said doctors should follow both the current law and the constitutional amendment. Again, I ask how can doctors follow the language of the amendment if the rules for it have not yet been devised?
Workplace Issues
Now that the amendment is enacted, employers will undoubtedly be faced with many questions and issues on how this new legal medicine will affect the workplace. Although the amendment's language provides minimal insight into its potential impact on employers, it does state, "Nothing in this section shall require any accommodation of any onsite medical use of marijuana in any correctional institution or detention facility or place of education or employment, or of smoking medical marijuana in any public place."
The authors of Amendment 2 expressed in their analysis of intent, "The amendment does not require that the smoking of medical marijuana be allowed in public, unlike the proper use of medical marijuana in a private place, which is not illegal. This provision also makes clear that the amendment does not change current laws relating to the use of marijuana in schools, correction institutions and detention facilities." The law does not require any accommodation of onsite medical use of marijuana in any place of employment. Since the amendment only addresses "smoking" specifically, the Florida Legislature and/or local governments may establish restrictions on other forms of consumption of medical marijuana in public places.
Many of our Florida clients are sharing their concerns of how the legalization of medical marijuana will affect their employment policies, in particular, whether they will have to provide a reasonable accommodation under the American with Disabilities Act. If an employee has a "debilitating medical condition," would the employer be required to allow such employee a break to use medical marijuana for their condition? Over the years the courts have addressed this and found that employers are not obligated to accommodate the use of medical marijuana in the workplace. This is mainly due to the fact that according to the ADA, a person using illegal drugs is not a "qualified individual with a disability" and therefore is not protected under the ADA. Despite medical marijuana's newfound legality in Florida, we cannot disregard the fact that marijuana remains illegal under federal law and therefore technically illegal under the ADA.
Zero Tolerance
Current standard drug testing cannot determine how much or how long THC or CBD has been in the body. THC is accumulated in fat reserves throughout the body and therefore can be stored for as long as 90 days. Employers in many states with legalized marijuana, who use nondiscriminatory zero-drug policies, can still terminate or refuse to hire employees who fail a drug test, even if their medical marijuana was ordered by their physician and purchased legally.
The use of medical marijuana in the workplace raises safety concerns for employers. The Occupational Safety and Health Administration requires employers to maintain a work environment "free of recognized hazards." It is critical for employers who employ individuals responsible for safety-sensitive tasks, such as construction and heavy equipment operations, to reevaluate their current drug policies. The use of medical marijuana may be deemed medically necessary by a physician but not in line with an employer's zero-tolerance policy.
Florida patients with qualifying medical conditions listed under the language of Amendment 2 may be able to obtain their medical marijuana medicine today. The many unanswered questions surrounding doctors, patients and dispensaries will hopefully be answered by the deadline of June 3, when the DOH needs to draft rules and regulations for the process of who, what and where medical marijuana can be grown and sold, as well as the commencement of the registration process for patients and MMTCs by Sept. 3.
Patients, like my daughter, need immediate access to all varieties medical marijuana. At the same time, the doctors who order it, the dispensaries that sell it and the patients who use it should not wonder whether or not they are breaking any state laws.
News Moderator: Katelyn Baker 420 MAGAZINE ®
Full Article: How Will Florida's Medical Marijuana Amendment Affect The Workplace?
Author: Seth A. Hyman
Contact: 877-256-2472
Photo Credit: Morgue
Website: Daily Business Review
