Monthly Archives: September 2014

Your Boss Wants You to Know: Medical Marijuana Legalization is Not a Green Light for Employee Usage

LLA Headshot smBy Lenis L. Archer, J.D., M.P.H., The Health Law Firm

The American opinion of marijuana use for both medicinal and recreational purposes has radically evolved over the years. A recent survey by Fextel, Inc. and StPetePolls.org found that more than 73 percent of Floridians would support a constitutional amendment to allow the use of medical marijuana to treat debilitating medical conditions. Although 23 states have passed legislation legalizing the use of medical marijuana, the battle to preserve a drug free work place has become a contentious issue between employers and employees nationwide. Drug free workplace regulations and longtime companywide policies are not likely to follow suit with the legalization. Employers are not eager to support an activity that would make an employee a greater liability to the organization.

However, employees of a medical office or hospital should be cautious when it comes to “playing with fire.” Amendment 2, a broader medical marijuana law allowing the growing, purchasing, possession, and use of marijuana to treat certain medical conditions, will be on the Florida ballot in November 2014. Employees should be aware that Amendment 2 does NOT address how employers should treat employees who are qualified to use marijuana medically. In addition, the proposed law would not require employers to accommodate the on-site use of medical marijuana for qualified employees. The stipulations accompanying the legislation allow for the use of marijuana, medical or not, to potentially be grounds for employment termination. Should the legislation pass in November, and should you receive a medical marijuana license, you may be not fully protected against the policies in place at your organization which forbid its use. Favorable public opinion of marijuana and even the legalization of its use will not earn you immunity by your place of employment.

 

Marijuana Laws: Federal vs. State.

Marijuana use is still illegal under federal law. Federal employment laws have not yet adopted state laws that are trending toward the legalization of marijuana. The Drug-Free Workplace Act of 1988 is a federal law, and marijuana is classified as an illegal drug by the federal government. Many companies abide by the Drug-Free Workplace Act because of the profitable federal contracts that are worth keeping. Even if you have a disability covered under the federal Americans with Disabilities Act, you are not protected by employment discrimination laws when it comes to the medical necessity of marijuana.

The New York Times reported that in the case of Coats v. Dish Network, LLC, the Court of Appeals of Colorado held that the state’s lawful activities statute did not bar the employer (Dish Network) from discharging an employee (Brandon Coats). Mr. Coats, a licensed medical marijuana user, debilitated by muscle spasms, tested positive for the substance during a random drug test at his work. Although the state of Colorado allows both recreational and medicinal use of cannabis, the court held that since the Colorado statute did not specify whether an activity’s legality was determined by state or federal law, and marijuana is illegal under federal law, employees licensed to use medical marijuana are not protected by the statute from termination. The case will now head to a Colorado federal court on appeal.

To read more on the Coats v. Dish Network, LLC case, click here.

This case highlights an important topic that merits more discussion. If states continue to legalize cannabis use, but the federal government remains stagnant on the issue or refuses to remove the substance from the list of drugs, users, both medicinal and recreational, will face the possibility of termination from their employer regardless of the legality in their home state.

How You Can Avoid Termination in the Midst of Conflicting Laws.

The bottom line: your employer can potentially terminate you for admitting to marijuana use and/or positive drug screen results. “But I am a licensed medical marijuana user in a legalized state.” Technically your employer can fire you under federal laws. Regardless of what state law, the United States government does not condone marijuana use. With the impending vote on Amendment 2 coming up in Florida, you need to be smart about the choices you make when it comes to the use of cannabis.

As a healthcare professional, you are held to a higher standard. Eyes are always on you to make a mistake or lapse in judgment. We have seen a plethora of healthcare professionals fight for their licenses and careers due to marijuana use. If you violate an employer’s drug policy as a healthcare professional, you face more than termination. You also face severe disciplinary actions such as losing your license, IPN/PRN contractual programs, and program exclusion (such as the OIG Exclusion List). Your career could dissolve right before your eyes over allegations of marijuana use.

Be proactive: review your company’s drug policies, and if available, its stance on the medical marijuana debate. Educate yourself of your company’s disciplinary procedures and whether they will apply to a licensed medical marijuana user. If Amendment 2 passes, regulations will continue to evolve. To maintain current knowledge, enroll yourself in continuing education courses (CEs). These will keep you “in the know” of changes made both federally and state wide. Obviously, if medically possible, the best way to protect yourself against employment issues is to abstain from any type of cannabis use.

 

Comments?

What is your stance on the legalization of medical marijuana use? What do you think the future holds in the workplace if more states continue to pass medical marijuana legislation? Please leave any thoughtful comments below.

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Healy, Jack. “Legal Use of Marijuana Clashes With Job Rules.” The New York Times. From: http://www.nytimes.com/2014/09/08/us/legal-use-of-marijuana-clashes-with-workplace-drug-testing.html?_r=0

Ballman, Donna. “Why Legal Marijuana Use Can Get You Fired.” AOL Jobs. From: http://jobs.aol.com/articles/2014/03/25/legal-marijuana-use-discrimination/

About the Author: Lenis L. Archer is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

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After Backlash, Office of Compassionate Use Rewrites Florida’s Medical Marijuana Rules

7 Indest-2008-4By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The devil is in the details. This is why state regulators went back to the drawing board to revamp the framework for Florida’s medical marijuana industry. On September 9, 2014, the Florida Department of Health (DOH) Office of Compassionate Use published a revised ruling governing everything medical marijuana: from stems and seeds to prescribing to patients. The latest version addresses issues regarding ownership rules on who can apply to be a medical marijuana dispenser in Florida.

Click here to read the updated bill.

The Office of Compassionate Use has until January 1, 2015, to come up with a finalized version of regulatory framework for the medical marijuana industry.

Florida’s Current Law on Medical Marijuana.

On June 16, 2014, Florida Governor Rick Scott signed SB 1030 (Compassionate Medical Cannabis Act of 2014) into law, making it legal for qualified Florida patients to take low-THC cannabis in liquid form. The specific medical marijuana is approved to treat certain medical conditions such as epilepsy, muscle spasms and cancer. The low-THC medical marijuana is expected to be ready in Florida by spring 2015.

Medical Marijuana Dispensary Requirements and Changes.

Five dispensing organizations will be licensed to grow, process, and distribute the low-THC cannabis.

The law will require each dispensing organization to have a valid registration from the Department of Agriculture and Consumer Services to cultivate more than 400,000 plants, be operated by a “nurseryman,” and have previously operated as a registered nursery in Florida for at least 30 continuous years. These rules were drafted in order to encourage nurseries that meet these criteria to become growers of medical marijuana and discourage non-nursery companies from buying into and controlling the industry for profits.

The previous proposed rule neglected to specifically address whether a nursery would be required to have a continued role in running a dispensary. Under the recent revisions, a nurseryman has to serve as an operator of a dispensary. The revised proposal requires a nursery to have at least 25 percent ownership of a dispensing organization licensed by the state. The rule also states that a nurseryman who owns 100 percent of his business could also be the sole owner of a dispensary.

The revisions require a 21-day notification period. Then a legislative committee must certify the new rules and the DOH will have to adopt them, which is another 20-day process. If all dates hold, the process will be done on November 4, 2014.

I query why such ridiculous requirements are even being proposed. Is it an attempt to award certain individuals by creating a monopoly in certain areas? Requiring patients to travel great distances to one of only five dispensaries in the state also seems to be an irrational requirement.

What About the Disputed Lottery?

The revised rule states that the Office of Compassionate Use decided to stick with the plan to use a lottery system to select dispensing organizations, which the state will eventually license. Health officials believe the process will minimize drawn-out litigation over contract awards that could delay getting medical marijuana to patients.

To read more on the revised rule, click here to read an article from Health News Florida.

Work in Progress.

With all the questions raised by the legislation, it is clear this framework for Florida’s medical marijuana industry is still a work in progress. There is still a lot of red tape to go through to get a functional business model approved for dispensing businesses. While state health officials sort out many lingering details, physicians and dispensaries alike are speculating and preparing for Florida’s medical marijuana industry. Don’t go the unknown road alone. It’s in your best interested to contact an attorney if you plan to have a hand in any part of Florida’s medical marijuana industry.

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com.

Sources:

Kam, Dara. “Regulators Take Another Shot at Pot Rule.” Health News Florida. (September 10, 2014). From: http://wusfnews.wusf.usf.edu/post/regulators-take-another-shot-pot-rule

Galka, Matt. “Revisions Being Made to Non-Euphoric Medical Marijuana Law.” News 4 Jax. (September 10, 2014). From: http://www.news4jax.com/news/revisions-being-made-to-noneuphoric-medical-marijuana-law/27987260

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Companies Planting the Seeds to Get into Florida’s Medical Marijuana Industry

DPP_1By Christopher E. Brown, J.D., The Health Law Firm

Florida’s medical marijuana industry is growing, before it even really starts. Effective January 1, 2015, physicians will be able to prescribe low-THC cannabis for patients suffering from cancer or a chronic condition that produces symptoms of seizures or severe and persistent muscle spasms. On June 16, 2014, Florida Governor Rick Scott signed SB 1030 (Compassionate Medical Cannabis Act of 2014) into law, making it legal for qualified Florida patients to take low-THC cannabis. Click here to read SB 1030.

While state health officials sort out many lingering details, physicians and dispensaries alike are speculating and preparing about Florida’s medical marijuana industry.

Betting on Green.

Florida’s Compassionate Medical Cannabis Act of 2014 allows one medical marijuana dispensing organization in each of the state’s five regions. Health officials support the process of choosing nurseries by using a lottery. To qualify, dispensaries must have done business in Florida for at least 30 years and must grow at least 400,000 plants. According to Reuters, at least 55 nurseries meet these criteria.

The conquest of becoming a nursery in Florida is getting competitive. GrowHealthy LLC, an Atlanta-based company, hopes to become the biggest medical marijuana factory in the country. According to Reuters, GrowHealthy already paid $2.1 million for a 33-acre property in Lake Wales, Florida. The company partners with several plant nurseries in the state which are eligible to apply for a growing license in the upcoming Florida lottery.

Basically GrowHealthy put down millions of dollars for the possibility of growing medical marijuana in the Sunshine State. According to GrowHealthy’s CEO, until they presumably get a medical marijuana license from the state, the company will grow vegetables in the warehouse. Click here to read the entire article from Reuters.

If GrowHealthly does win a coveted spot in the lottery, the company hopes that its plans for large-scale production could allow medical marijuana patients to get it for a cheaper price. For reference, a holder of a doctor-prescribed red card in Colorado can buy an ounce of medical marijuana for around $200.

Planting Roots in Florida.

The Compassionate Medical Cannabis Act of 2014 is just the first step for Florida. A broader medical marijuana law, Amendment 2, will appear on Florida’s November ballot. If passed, Amendment 2 will legalize the growing, purchasing, possession and use of marijuana to treat medical conditions.

In a recent survey published in the Orlando Sentinel, 88 percent of Floridian voters overwhelmingly support the constitutional amendment legalizing medical marijuana.

Keep on Trucking.

If the legislation in November passes, not only could Florida patients have easier access to medical marijuana, but it could also be delivered directly to door steps.

According to the Orlando Sentinel, under a revised rule proposed by health regulators, Florida medical marijuana dispensers could truck their products right to patients. The new draft rule would allow dispensing organizations to deliver 30-day supplies of medical cannabis, statewide. Click here to read the entire article from the Orlando Sentinel.

There is still a lot to be figured out when it comes to growing and prescribing medical marijuana. The Department of Health Office of Compassionate Use will meet on September 5, 2014, to discuss proposed administrative code rules implementing Chapters 2014-157 and 2014-158, Laws of Florida, acts relating to cannabis and public records. Be sure to check this blog regularly for updates from this meeting.

Comments?

What are your thoughts on the dispensary lottery system? Do you think five nurseries will be able to meet the demands of Florida patients? Do you think the Amendment 2 will pass in November? Why or why not? Please leave any thoughtful comments below.

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Liston, Barbara. “Florida Firm Plans Big, Low Cost, Medical Marijuana Grow Operation.” Reuters. (August 28, 2014). From: http://www.reuters.com/article/2014/08/27/us-usa-marijuana-florida-idUSKBN0GR28H20140827

Kam, Dara. “Medical-pot Growers Could Truck Product to Patients, New Rules Says.” Orlando Sentinel. (July 30, 2014). From: http://articles.orlandosentinel.com/2014-07-30/business/os-florida-marijuana-rules-20140730_1_health-officials-patients-nursery-owners

About the Author: Christopher E. Brown, J.D., is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

 

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.