No Employment Right To Use Medical Marijuana At Home

Written on 05/13/2022
Will Aitchison

Sergeant Samuel Velez Ortiz worked for the Florida Department of Corrections. Velez Ortiz became a patient of Dr. Justin Davis, who is licensed by the Florida Department of Health (DOH) to recommend medical marijuana use. After consulting with Dr. Davis, Velez Ortiz sought and obtained a valid medical marijuana-use registration card from the DOH based on his PTSD, which is a qualifying condition. Accordingly, Velez Ortiz used medical marijuana to treat his PTSD while working for the Depart­ment but did not work while under the influence of medical marijuana or use marijuana on the premise or in any manner that would put inmates or his colleagues at risk.

When Velez Ortiz failed a random drug test because of the presence of marijuana metabolites in his sys­tem, the Department terminated his employment for violating its drug-free workplace policy. Velez Ortiz challenged his termination through Florida’s Public Employment Relations Board.

Velez Ortiz argued that his mari­juana use was protected by Article X, Section 29(a)(1), of the Florida Con­stitution, which states that a medical marijuana patient is not subject to civil, or criminal liability or sanctions, and section (c)(6), which specifically states that employers are not required to per­mit on-site use, thereby implying they are required to accommodate off-site use. In addition, Velez Ortiz argued that his termination was contrary to section 381.986(15)(b) of the Florida Statutes, which requires employers to accommodate an employee’s off-site use of medical marijuana.

PERC rejected Velez Ortiz’s appeal. PERC observed that “this issue is one of first impression for the Commission. This case turns on the fact that even though medical mari­juana is legal under Florida law, the Department has adopted a blanket policy prohibiting any use of marijua­na. It is not our prerogative to rewrite the Department’s drug-free workplace policy or question its wisdom. Thus, we review each constitutional and statutory provision that Velez Ortiz relies upon to determine whether the Department’s policy prohibiting all use of medical marijuana is legal.

“In his first argument, Velez Ortiz asserts that the Florida Constitution protects his use of medical marijuana. However, Section 29(a)(1) protects a patient and caregiver only from ‘lia­bility or sanctions under Florida law.’ Accordingly, as the case here involves whether a public employer can institute its own workplace policy that prohibits all use of marijuana, this constitutional provision does not apply to the instant situation.

“Velez Ortiz also points to Section 29(c)(6), which states that ‘nothing in this section shall require any ac­commodation of any on-site 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.’ According to Velez Or­tiz, the Commission should read this provision as implicitly providing him the right to use medical marijuana at home, meaning, off-site.

“However, this provision does not state that off-site use is permissible. A constitutional provision must be given its plain and obvious meaning. One cannot add words to a constitutional provision. Thus, we cannot construe the absence of language in Section 29(c)(6) as creating an affirmative right or ability that was not expressly provided for.

“Further, section 381.986(15)(c) of the Florida Statutes states: ‘This section does not create a cause of ac­tion against an employer for wrongful discharge or discrimination.’ Pursuant to this plain language, the Legislature did not require employers to modify their drug-free workplace policies to permit the use of medical marijuana, but in fact, has permitted an employer to continue enforcing their drug-free workplace policies.”

Ortiz v. Department of Corrections, 48 FPER ¶ 274 (Fla. PERC 2022).

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