Quick Hits
- In Hillsborough County v. Giambrone, a Florida appellate court overturned a lower court’s unprecedented ruling that required a county to accommodate a paramedic’s off-duty medical marijuana use after a positive random drug test.
- The court emphasized that the language in the parties’ collective bargaining agreement (CBA) and drug-free workplace policies must be carefully considered.
- The court also held that Florida’s medical marijuana framework does not: 1) create a private cause of action against an employer for wrongful discharge or discrimination; 2) by itself, create an affirmative accommodation mandate; or 3) prohibit an employer from enforcing stringent fitness-for-duty standards in a safety-sensitive setting.
- Forty states and Washington, D.C., have legalized medical marijuana, but state laws vary on workplace accommodations and restrictions on drug testing.
Recreational marijuana use remains illegal in Florida, but medical marijuana use is lawful for adults ages twenty-one and older with a valid Medical Marijuana Use Registry card for a qualifying medical condition. Increasingly, employees have sought to utilize the Americans with Disabilities Act (ADA) or the Florida Civil Rights Act (FCRA) to claim that their personal symptoms or limitations qualify as disabilities for which employers must accommodate medical marijuana usage.
Background
In February 2019, Angelo Giambrone, an emergency medical technician (EMT) for Hillsborough County’s fire department, tested positive for marijuana during a random drug test. He presented his employer with a valid medical marijuana card. He argued that his union contract permitted employees like him to present a medical marijuana card as evidence of a prescription medication authorized under state law, thereby providing a defense to an adverse employment action.
The county placed him on unpaid administrative leave and reported him to the EMT licensing board, which dropped its investigation based on his status as a medical marijuana cardholder.
Giambrone then sued, raising four claims: failure-to-accommodate under the FCRA, wrongful termination, failure to update the county’s drug-free workplace policy to comply with Florida’s constitutional amendment allowing medical marijuana, and breach of contract claim under the CBA. The county argued that a medical marijuana card does not exempt employees from complying with the CBA, the county’s drug-free workplace policy, and federal law, which bans marijuana use.
In December 2024, the trial court sided with Giambrone on every count. The Thirteenth Judicial Circuit Court of Florida ruled that the Florida Constitution requires a public employer to accommodate an employee’s off-duty, off-site medical marijuana use to treat a disability. This was in part because Giambrone’s EMT license was controlled by the state.
The opinion further pointed to the CBA’s language allowing employees to report the use of prescription medications authorized under both federal and state law upon testing positive on a drug test, finding that medical marijuana is akin to a prescription medication despite being illegal under federal law. It also entered a broad, forward-looking order that required the county to accommodate any employee who presented a medical marijuana card after a positive test, so long as there was no proof of on-duty use or impairment on the job.
Appellate Court Ruling
The Second DCA reversed in full, concluding that the trial court committed legal error on several important issues, and it remanded with instructions to enter judgment for the county on all counts.
The heart of the case turned on one key question. Was medical marijuana a “prescription” or “nonprescription medication” under the county’s drug-free workplace policy and CBA? The court said the medical marijuana was a nonprescription medication on both counts.
The CBA prohibited using, possessing, or being under the influence of a “drug” while at work, on county property, in a county vehicle, or while displaying a county logo. The appellate court noted that the CBA defined prohibited “drugs” to include substances that extended well beyond criminally prohibited substances. Importantly, the CBA specifically provided that medications detected on a positive drug test could be excused if they were either a medication prescribed under Florida’s pharmacy laws or an over-the-counter medication authorized for general distribution without a prescription.
The Second DCA noted a “prescription” required dispensing by a licensed pharmacist under Florida’s pharmacy laws, but medical marijuana does not move through that system. Rather, it is authorized by physician certification and dispensed only through licensed dispensaries under a different statute. Moreover, medical marijuana is not an over-the-counter medication because it is not available for general public use. Federal law criminalizes marijuana possession, and Florida law limits it to being dispensed from licensed dispensaries.
The court also addressed the recent federal move to reschedule marijuana from Schedule I to Schedule III, effective April 28, 2026. Because this case was governed by the law in place when the claims arose in 2019 and 2020, that development did not affect its analysis. The court indicated that Schedule III status would not help the employee because reclassification would not make Florida medical marijuana equivalent to an over-the-counter medication. It would still be limited to medical purposes, limited to users authorized by state law, and dispensed through licensed entities under a controlled regulatory framework.
The court contrasted that regime with drugs made available for general public distribution and use without individualized medical authorization. It also noted that Schedule III drugs generally remain subject to prescription-based dispensing rules under federal law. So, even if marijuana is Schedule III, it still would not be a medication authorized for general distribution and use without a prescription.
The court’s prescription analysis depended on Florida’s statutory structure. Medical marijuana is authorized by physician certification and dispensed through licensed dispensaries. Unless Florida’s medical marijuana system changed to make marijuana dispensed through pharmacists, Schedule III status alone would likely not make a medical marijuana card a “prescription” under the CBA at issue.
Finally, the appellate court rejected the trial court’s reading of Florida’s constitutional medical marijuana amendment. It found that nothing in Florida’s medical marijuana amendment requires an employer to accommodate on-site medical marijuana use in a place of employment. The trial court reasoned that, because the amendment only disclaims a duty to accommodate on-site use, employers must therefore accommodate off-site use. The Second DCA rejected that notion, concluding that the amendment’s language is a limitation clause, not a grant of employee rights against employers. It tells courts what the amendment does not require; it does not say what employers must do. Employers retain the ability to “establish, continue, or enforce” a drug-free workplace program or policy.
The Second DCA confirmed that Florida’s medical marijuana framework preserves employer discretion, rather than creating a new accommodation mandate. It found the medical marijuana statute does not require an employer to accommodate the medical use of marijuana in any workplace or an employee working while under the influence of marijuana.
The concurring opinion observed that Giambrone was a firefighter-paramedic who was subject to the statutory requirement of not being a convicted felon and maintaining good moral character. Thus, he could not maintain his firefighter certification while continuing to use medical marijuana, since such use was a federal felony. In addition, the essential functions of the job, which is a safety-sensitive position, indicated that his requested accommodation—off-duty medical marijuana usage—was not necessarily a reasonable request.
Practical Takeaways
Several questions remain open. The majority opinion stressed that its holding is narrow, tied to this specific CBA and policy. Other employers with different contract language may see different results. It is also unclear whether the Florida Supreme Court will take up this issue, or whether the legislature will revisit the statutes in light of continued litigation.
The federal rescheduling of marijuana to Schedule III may eventually reshape how courts analyze disability accommodation claims under the FCRA and ADA, even though it did not affect this case. Notably, the majority opinion in this case did not fully resolve the underlying FCRA claims, including whether Giambrone qualified as an individual with a disability entitled to accommodation. Florida employers should expect this area of law to keep developing, and may want to monitor both appellate decisions and any legislative action closely.
Even though the county ultimately won, the case shows where employer policies can be misread or challenged. Florida employers may want to review drug-free workplace policies along with CBA definitions to determine whether they utilize the terms “prescriptions” and “nonprescription medication” so that they track the proper statutory language, rather than looser terms that could be stretched to cover medical marijuana. Clear, consistently enforced policy language may help employers defend decisions involving medical marijuana use.
While a Florida medical marijuana card does not automatically make continued off-duty marijuana use a required workplace accommodation, Florida employers still may wish to engage in an interactive process to determine a reasonable accommodation, if any, when an employee is a medical marijuana cardholder.
Ogletree Deakins’ Drug Testing Practice Group and Florida offices will continue to monitor developments and will post updates on the Drug Testing and Florida blogs as additional information becomes available.
Information on state and federal marijuana laws, as well as drug testing requirements, is available on the Ogletree Deakins Client Portal. As new laws are enacted, the Client Portal will provide updates on the Florida Medical Marijuana Law Summary, the Florida Recreational Marijuana Law Summary, the Florida Drug Testing Marijuana Law Summary, and the Florida Lawful Off-Duty Conduct Law Summary. Template policies and full law summaries are available for Premium and Advanced subscribers. Snapshots and updates are available for all registered client users. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.
Dee Anna D. Hays is a shareholder in Ogletree Deakins’ Tampa office.
Karen M. Morinelli is a shareholder in Ogletree Deakins’ Tampa office.
John C. Getty is of counsel in Ogletree Deakins’ Tampa office.
This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.
Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts
