Current as of September 23, 2026. Two changes happened this year: a rule in April and a Florida appeals court decision in July.
The answer: a Florida medical marijuana card does not protect a job on its own. Florida law states three things plainly:
- Does not stop an employer from having a drug-free workplace policy.
- Does not require an employer to allow marijuana use at work.
- Does not give an employee the right to sue for being fired because of marijuana. § 381.986(15) Fla. Stat.
That is where the analysis starts, not where it ends. Several questions are still open. One was reopened this year.
This article explains what the law says and what the courts have decided. It does not give advice to employers or employees.
The federal rules changed in April 2026
Marijuana used to be in Schedule I, the restricted category under federal drug law. That changed on April 28, 2026, when a federal rule moved FDA-approved marijuana products and marijuana sold under a state marijuana license into Schedule III. 91 Fed. Reg. 22,714 (Apr. 28, 2026) Two things about this are widely misunderstood. A patient’s card did not cause the change; the change came from rulemaking. No card moves marijuana into Schedule III, and Florida cannot change a drug schedule. When the rule mentions a “state medical marijuana license,” it means the licensed businesses in a state’s program, not a patient ID card. And marijuana is still not available like aspirin: sellers may give it to people a state has authorized to use it medically. Id. at 22,721–22.
The practical takeaway is broad: any employee handbook, drug policy, or article written before April 28, 2026, describes marijuana’s status incorrectly. Whether that error changes who wins a case is an open question.
What Florida law actually says about jobs
One provision matters more than any other. Section 381.986(15) says Florida’s medical marijuana law:
Florida law does not stop an employer from creating, keeping, or enforcing a drug-free workplace policy (15)(a); Florida law does not require an employer to allow medical marijuana use at work or to let anyone work while under the influence (15)(b); Florida law does not give anyone the right to sue an employer for firing or discrimination (15)(c).
Two features of that wording have been fought over in court. First, it lists what Florida law does not do, not the rights it gives. Florida’s Second District Court of Appeal has refused to read an employer duty into a sentence that only says, “no duty.” Second, that last item blocks lawsuits under this law. It leaves laws alone, such as the Florida Civil Rights Act, the Americans with Disabilities Act, a union contract, workers’ compensation retaliation, and an employment contract. That gap is where the remaining cases get fought.
Why “federal law wins” isn’t quite the way to think about it
People often say federal law overrides or “preempts” Florida’s program. That does not. No court has held that it does. Florida simply chose not to punish patients under state law; the federal government is not bound by that choice, and Florida cannot shield anyone from federal law. The state constitution says outright: “Nothing in this section requires the violation of federal law or purports to give immunity under federal law.” Art. X, § 29(c)(5), Fla. Const.
So the job consequences come from Florida’s statute and for federal contractors from their contracts and the federal Drug-Free Workplace Act of 1988 which requires a written policy and an awareness program but does not require drug testing. 41 U.S.C. § 8101 et seq.
Florida has two drug-testing laws. They get mixed up constantly
Section 440.102 covers employers and ties into workers’ compensation. Section 112.0455 covers state agencies. They look similar. Are not identical, and citing one when you mean the other is an error. Joining either is optional; a private employer with a qualifying program gets a break on workers’ comp rates. § 627.0915(1), Fla. Stat. These laws help both sides
For employers: a failed drug test, standing alone, doesn’t make someone disabled under discrimination law, and an employer who follows the statute is treated as having acted “for cause.” §§ 440.102(7)(a)–(b), 112.0455(10)(a)–(b), Fla. Stat.
For employees: those protections apply only if the employer actually follows the rules: five working days to notify the employee in writing of a positive result, then five working days for the employee to respond, explain, or challenge it. §§ 440.102(5)(h)–(i), 112.0455(8)(i), (k), Fla. Stat. Whether a program really qualifies must be shown, not assumed.
Can someone be fired for a positive test if they have a card?
The leading recent case is Hillsborough County v. Giambrone, decided July 29, 2026.
A firefighter-paramedic was picked for a random drug test and tested positive. Nobody claimed he used marijuana at work, nobody said his performance suffered, and nobody had complained about him before. He showed his valid card to the doctor who reviews test results. The County put him on unpaid leave anyway. His job was covered by a union contract. In legal shorthand, a collective bargaining agreement, or CBA.
The trial judge sided with the employee and went further, ordering the County to accommodate any card-holding employee countywide. The appeals court reversed all of it and ruled for the County:
- A card isn’t a prescription. The union contract defined “prescription” by pointing to a Florida law requiring a pharmacist to fill it. Medical marijuana is sold through treatment centers that Florida law exempts from pharmacy rules, so the card didn’t fit.
- Nothing requires an employer to accommodate off-duty use. Florida’s constitution says employers needn’t allow marijuana at work. The employee argued that implies they must allow it away from work. The court rejected that, memorably: the interpretive rule he relied on is “not a spell for transmogrifying a no-duty clause into a yes-duty command.”
- The trial judge went too far. A court can’t dictate how a county treats employees who weren’t part of the lawsuit. That’s policymaking, which belongs to the legislature.
Be careful how far you stretch this case.
The court’s first footnote stressed “the narrowness of our decision”; it turned on this specific union contract and how “other employers, or employees subject to different CBAs or different policies, may address medical marijuana is not before us.” The majority also never decided on the Florida Civil Rights Act question; one judge addressed it in a separate, non-binding opinion. Check whether the decision has been appealed before relying on it.
An earlier case, Velez Ortiz v. Department of Corrections, 368 So. 3d 33 (Fla. 1st DCA 2023), upheld firing a corrections officer but narrowly. Officers must keep “good moral character” to hold their certification, and because his marijuana use was then a federal crime, he couldn’t legally carry a gun. That reasoning rests on marijuana’s old federal status.
What a drug test actually proves
A standard urine test doesn’t detect whether someone is high. It detects metabolites, chemical traces the body leaves behind for days or weeks after any effect wears off. A positive result proves those traces are there. On its own, it doesn’t prove anyone was impaired at any particular moment.
Whether that matters legally depends entirely on how the policy is written. If a compliant policy or union contract says a confirmed positive test is the violation, no proof of impairment is needed; that’s what happened in Giambrone. If the policy instead defines the violation as being under the influence, using on the job, or showing actual impairment, the employer has to prove more. The words in the document control, and they vary a lot.
The disability question is still unanswered
The ADA doesn’t protect an employee who is “currently engaging in the illegal use of drugs” when the employer acts because of that use. 42 U.S.C. § 12114(a). Florida courts read the Florida Civil Rights Act the same way.
But that exclusion is tied to drugs illegal under federal law, and it specifically doesn’t cover drugs “taken under supervision by a licensed health care professional.” 42 U.S.C. § 12111(6)(A). April’s rescheduling knocked out the assumption every earlier case was built on, and no Florida appeals court has looked at the question under the new rules.
There’s also a distinction both sides get wrong constantly: the illness and the treatment are two different questions. Cancer, epilepsy, PTSD, and chronic pain can each be a disability in their own right, which triggers an employer’s duty to discuss possible accommodations. Deciding that marijuana use isn’t protected says nothing about whether the underlying condition is.
Some jobs (and some contracts) have stricter rules
A few positions carry legal requirements that exist no matter what an employer’s policy says. Corrections officers and firefighters must maintain “good moral character.” §§ 943.13(4), (7); 633.412(4), Fla. Stat. Federal transportation rules require testing for certain driving and safety-sensitive jobs, regardless of state marijuana laws. And where a union contract applies, its terms usually decide the outcome, even when stricter than the law generally requires. As the appeals court put it, bargaining “is one of give and take,” and once both sides have struck a deal, courts “do not recalibrate it.”
Questions no Florida court has answered yet
- Does April’s rescheduling change the ADA’s “illegal drug use” exclusion, or does state-licensed medical marijuana now count as supervised medical use?
- Can an employee sue under the Florida Civil Rights Act because of the underlying condition when the requested accommodation is tolerance of off‑duty use?
- How does the phrase “in any workplace” apply to a person who works entirely from home?
- Do policies written when marijuana was Schedule I, those built around the word “prescription,” Still do what the drafters intended?
- Does Giambrone reach beyond the government‑employer, union‑contract setting that the court limited it to?
Common questions
Does a Florida medical marijuana card protect an employee from being fired?
Not on its own. Florida’s medical marijuana law specifically doesn’t require employers to make exceptions and doesn’t create a right to sue. Whether some other law helps depends on the specific policy, contract, and job.
Does Florida require employers to take drug tests?
No. Both Florida drug-free workplace programs are voluntary, and the federal Drug-Free Workplace Act doesn’t require testing either.
Does a failed drug test prove someone was high at work?
No. Standard tests find traces that linger long after any effect. Whether that matters legally depends on how the policy defines the violation.
Did the April 2026 rescheduling change Florida employment law?
Not directly. It changed marijuana’s federal status. Several employment law questions depend on including the ADA question. No Florida appeals court has revisited them yet.
This article is provided for general informational purposes and is not legal advice. It does not create an attorney-client relationship. The law in this area is developing, and outcomes depend on the specific policies, agreements, job duties, and facts involved. Anyone facing a workplace marijuana issue should consult counsel about their particular circumstances.
Fernée Kelly Law is an employment and civil litigation firm in Tampa, Florida, representing both employees and employers. TheWorkAttorney.com | (813) 315-3981 | contactus@ferneekellylaw.com
