When an employee tests positive for marijuana but holds a valid state medical card, how should HR respond? A recent Florida appeals court decision in Hillsborough County v. Giambrone confirmed that having a medical card doesn’t automatically grant an employee immunity from drug-free workplace policies.
While the ruling supports employer enforcement, the holding is narrow and tightly bound to specific collective bargaining agreements (CBAs) and safety-sensitive roles. Key takeaways for HR leaders include:
- Policy Definitions Drive the Outcome: The court’s decision turned heavily on how terms like “prescription” were defined and whether prohibitions extended beyond the workplace. Crucially, a medical marijuana card is legally distinct from a standard drug prescription.
- Safety Roles Stand on Stronger Ground: Employers with first responders under “at any time” drug prohibitions are best positioned under this precedent, and on-the-job use remains a clear disciplinary issue rather than a statutory accommodation.
- Avoid Blanket Denials: The court left open the possibility for Florida Civil Rights Act (FCRA) claims under different policy structures, meaning employers shouldn’t use this case to automatically refuse all accommodation requests.
- Federal Changes Won’t Force Policy Rewrites: Potential federal rescheduling does not create an automatic accommodation right or legally require courts to rewrite workplace drug policies.
- Consult Legal Counsel First: Given the narrow scope of this decision, HR leaders—especially those in non-safety-sensitive industries or with different CBA language—should consult counsel before taking disciplinary action based on this ruling.
HR Daily Advisor sat down with Leonard J. Dietzen, III, partner in RumbergerKirk’s Employment & Labor practice, to break down what this decision actually means for workplace policies, safety roles, and employee accommodation requests.
Here’s what he had to say.
What specific language should employers review or update in their drug-free workplace policies to ensure alignment with this ruling’s reasoning?
Divide positions into safety and non-safety duties. Make sure their grant funding does not have drug free policies that prohibit the use of Marijuana. Review drug testing procedures so that they can be ready for testing should the need arise on reasonable suspicion testing which is always available to an employer.
Do you anticipate employers will face increased pressure to revisit drug testing policies given federal rescheduling, despite this ruling’s narrow scope?
Yes. The case did not address the ADA’s implications. It was careful to discuss the case was based on older decisions that held that when marijuana was a schedule one classification it was a felony and illegal to accommodate because of its status. The case did not deal with the reclassification which is now ripe for consideration for another court.
What is your top recommendation for HR professionals who want to rely on this decision as precedent, particularly regarding when they should consult employment counsel?
This case was very narrow and relied on a narrow CBA language and policy. This case was decided when marijuana was classified as a schedule one drug. How the new classification of marijuana impacts the FCHR and ADA should be discussed with counsel. Blanket policies forbidding use at home probably will not be upheld under this law.
How should HR teams document and communicate drug-free workplace policies to avoid the kind of dispute that led to this litigation?
Look at all hiring and testing policies. Make sure they comply with the new classification and legal landscape.