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Florida Senate
-
2026
SB 136
By
Senator Polsky
30-00103-26 2026136__
1 A bill to be entitled
2 An act relating to protections for public employees
3 who use medical marijuana as qualified patients;
4 creating s. 112.0556, F.S.; defining terms;
5 prohibiting a public employer from taking adverse
6 personnel action against an employee or a job
7 applicant for his or her use of medical marijuana if
8 the employee or job applicant is a qualified patient;
9 providing exceptions; requiring a public employer to
10 provide, within a specified timeframe, written notice
11 of an employee’s or a job applicant’s right to explain
12 or contest a positive marijuana test result; providing
13 procedures that apply when an employee or a job
14 applicant tests positive for marijuana; providing a
15 cause of action and damages; providing construction;
16 providing an effective date.
17
18 Be It Enacted by the Legislature of the State of Florida:
19
20 Section 1. Section 112.0556, Florida Statutes, is created
21 to read:
22
112.0556
Medical Marijuana Public Employee Protection Act.—
23
(1)
As used in this section, the term:
24
(a)
“Adverse personnel action” means the refusal to hire or
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employ a qualified patient; the discharge, suspension, transfer,
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or demotion of a qualified patient; the mandatory retirement of
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a qualified patient; or the discrimination against a qualified
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patient with respect to compensation, terms, conditions, or
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privileges of employment.
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(b)
“Job applicant” means a person who has applied for a
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position with a public employer and has been offered employment
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conditioned upon his or her passing a drug test.
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(c)
“Law enforcement agency” has the same meaning as in s.
34
908.102.
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(d)
“Physician certification” has the same meaning as in s.
36
381.986.
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(e)
“Public employee” or “employee” means an employee of a
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public employer.
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(f)
“Public employer” or “employer” means a state,
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regional, county, local, or municipal governmental entity,
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whether executive, judicial, or legislative; an official, an
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officer, a department, a division, a bureau, a commission, an
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authority, or a political subdivision of such entity; or a
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public school, a Florida College System institution, or a state
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university, any of which employs individuals for salary, wages,
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or other remuneration.
47
(g)
“Qualified patient” has the same meaning as in s.
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381.986.
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(h)
“Undue hardship” means an action requiring significant
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difficulty or expense, when considered in light of all of the
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following factors:
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1.
The nature, cost, and duration of the accommodation.
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2.
The overall financial resources of the public employer.
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3.
The overall size of the business of the public employer
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with respect to the number of employees and the number, type,
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and location of the public employer’s facilities.
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4.
The effect on expenses and resources or any other
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impacts of such accommodation upon the operation of the public
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employer.
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(2)(a)
Except as provided in paragraph (b), a public
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employer may not take adverse personnel action against an
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employee or a job applicant for his or her use of medical
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marijuana if the employee or job applicant is a qualified
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patient under s. 381.986.
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(b)
A public employer may take appropriate adverse
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personnel action against an employee if the public employer
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establishes by a preponderance of the evidence that the lawful
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use of medical marijuana is impairing the employee’s ability to
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perform his or her job duties or responsibilities.
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(c)
For purposes of this subsection, a public employer may
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consider an employee’s ability to perform his or her job duties
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or responsibilities to be impaired if the employee displays
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specific, articulable symptoms while working which adversely
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affect the performance of his or her duties or responsibilities.
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(3)(a)
If a public employer has a drug testing policy and
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an employee or a job applicant tests positive for marijuana or
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its metabolites, the employer must provide to the employee or
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job applicant written notice, within 5 business days after
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receipt of the positive test result, of his or her right to
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provide an explanation for or contest the positive test result.
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(b)
Within 5 business days after receipt of the written
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notice in paragraph (a), the employee or job applicant may
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submit information to his or her employer explaining or
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contesting the positive test result or may request a
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confirmation test, as defined in s. 112.0455(5), at the expense
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of the employee or job applicant.
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(c)
An employee or a job applicant may submit a physician
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certification for medical marijuana use or a medical marijuana
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use registry identification card as part of his or her
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explanation for the positive test result.
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(d)
If an employee or a job applicant fails to provide a
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satisfactory explanation for the positive test result, his or
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her employer must verify the positive test result with a
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confirmation test, at the expense of the employer, before the
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employer may take adverse personnel action against the employee
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or job applicant.
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(4)(a)
Notwithstanding s. 381.986(15), a public employee or
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a job applicant who has been the subject of an adverse personnel
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action in violation of this section may institute a civil action
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in a court of competent jurisdiction for relief as set forth in
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paragraph (c) within 180 days after the alleged violation.
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(b)
A public employee or a job applicant may not recover in
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any action brought under this subsection if the adverse
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personnel action was predicated upon a ground other than his or
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her exercise of a right protected by this section.
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(c)
In any action brought under this subsection, the court
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may order any of the following:
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1.
An injunction restraining continued violation of this
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section.
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2.
Reinstatement of the public employee to the same
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position held before the adverse personnel action, or to an
112
equivalent position.
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3.
Reinstatement of full fringe benefits and seniority
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rights.
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4.
Compensation for lost wages, benefits, and other
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remuneration.
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5.
Reasonable attorney fees and costs.
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6.
Any other compensatory damages allowed by general law.
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(5)
This section does not do any of the following:
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(a)
Prohibit a public employer from taking adverse
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personnel action against an employee for the possession or use
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of a controlled substance, as defined in s. 893.02, during
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normal business hours or require an employer to commit any act
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that would cause the employer to violate federal law or that
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would result in the loss of a federal contract or federal
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funding.
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(b)
Require a governmental medical assistance program or
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private health insurer to reimburse a person for costs
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associated with his or her use of medical marijuana.
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(c)
Require a public employer to modify the job or working
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conditions of a person who engages in the use of medical
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marijuana based on the reasonable business purposes of the
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employer. However, notwithstanding s. 381.986(15) and except as
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provided in paragraph (d), such employer must attempt to make
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reasonable accommodations for the medical needs of an employee
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who engages in the use of medical marijuana if the employee
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holds a valid medical marijuana use registry identification
138
card, unless the employer can demonstrate that the accommodation
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would pose a threat of harm or danger to persons or property,
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impose an undue hardship on the employer, or prevent an employee
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from fulfilling his or her job responsibilities.
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(d)
Prohibit a law enforcement agency from adopting
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policies and procedures that preclude an employee from engaging
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in the use of medical marijuana.
145 Section 2. This act shall take effect upon becoming a law.