Labor & Employment Law Daily Wrap Up, DISCRIMINATION—Fla. Dist. App.: County entitled to judgment in firefighter’s medical marijuana suit, (Jul 30, 2026)

By Kathleen Kapusta, J.D.

“In the end, this appeal is not a referendum on medical marijuana, but rather a reminder that courts do not rule on intuition or based on popular sentiments, and they do not govern at all.”

Reversing a trial court’s judgment granting relief to a county firefighter paramedic who, despite possessing a valid medical marijuana card, was suspended after testing positive for marijuana on a random drug test, a state appeals court found the county was entitled to judgment as a matter of law under the Florida Constitution, the implementing statute, the county’s drug testing framework, and the parties’ governing collective bargaining agreement. “Stepping back,” wrote the court, “the trial court’s order depends on an interpretive chain that breaks at every link,” and even if the merits were closer than they are, “the breadth of relief the trial court ordered would independently require reversal.” Judge Silberman concurred in the results only and Judge Smith, specially concurring, found the majority’s opinion stopped short in failing to address the firefighter’s claims under the FCRA (Hillsborough County v. Giambrone, No. 2D2025-0115 (Fla. Dist. App. July 29, 2026)).

When the firefighter, who possessed a valid medical marijuana card, was placed on unpaid administrative leave after testing positive for marijuana on a random drug test, he sued the county asserting claims for failure to accommodate under the Florida Civil Rights Act (FCRA); wrongful termination based on the county’s refusal to accept the medical marijuana card as justification for the positive result under its drug-free workplace policy and the CBA; failure to update its drug-free workplace policy; and breach of contract based on violations of the policy and the CBA.

Trial court order. The trial court, granting summary judgment to the firefighter, awarded broad prospective relief mandating that the county must “provide an accommodation to employees who present a valid State of Florida Medical Marijuana Card after testing positive for marijuana” so long as there is “no evidence” of on-duty use, possession, or working “under the influence.”

Prescription. On appeal, the court first addressed the trial court’s determination that medical marijuana is considered a prescription because it is an order for drugs written by a licensed doctor and “nowhere in [the CBA] is medical marijuana enumerated as distinct from all other prescribed medications.” Pursuant to Section 40.1(A) of the CBA’s substance abuse policy, the appeals court noted, county employees are prohibited from using, possessing, or being under the influence of a drug while at work, on county property, or in a county vehicle. Employees are also prohibited from the same conduct “at any time while employed by Hillsborough County Fire Rescue, other than alcohol or prescribed medications.”

Section 40.2(L) of the CBA defines “Prescription or Nonprescription Medication” as “a drug or medication obtained pursuant to a prescription as defined by s[ection] 893.02 or a medication that is authorized pursuant to federal or state law for general distribution and use without a prescription in the treatment of human diseases, ailments, or injuries.” The trial court determined that medical marijuana is a medication authorized for general distribution.

Separate regime. Disagreeing, the appeals court first explained that medical marijuana is not a “drug or medication obtained pursuant to a prescription as defined by s[ection] 893.02.” That section, the court observed, is part of a framework that defines prescription as an order that is dispensed by a licensed pharmacist and medical marijuana is dispensed through a separate regime specifically created for that purpose.

Special pharmacy. In an attempt to avoid this, the appeals court observed, the trial court declared that a medical marijuana treatment center “fits the definition of [a] Special Pharmacy” under section 465.003(11)(a)4. But Chapter 465 defines a “special pharmacy” as a location where “medicinal drugs are compounded, dispensed, stored, or sold” and “medicinal drugs,” are limited to “prescription” or “legend” drugs that federal or state law requires to be dispensed “only on a prescription.”

Medical marijuana does not operate within this framework as Florida law defines ‘medical use” of marijuana as conduct “authorized by a physician certification,” not a prescription, and the legislature expressly provided that a licensed medical marijuana treatment center and its employees “are not subject to licensure or regulation under chapter 465” for “dispensing” marijuana.

Nonprescription medication under the CBA. Nor is medical marijuana a nonprescription medication under the CBA, said the court, noting that it is not authorized for “general distribution and use without a prescription” under federal or state law. Federal law prohibits such conduct with respect to marijuana and in Florida, it is dispensed through a patient-specific regime limited to “medical use by a qualified patient.”

Requirement to report test as negative. As to the trial court’s order suggesting that the medical review officer was required to report the firefighter’s test result as negative once he presented his valid medical marijuana card, such a card, said the appeals court, is neither “a prescription as defined by s[ection] 893.02” nor evidence that marijuana is “authorized... for general distribution and use without a prescription.”

CBA’s drug prohibitions. Regarding the trial court’s determination that the “plain language” of section 40.1(A) of the CBA only prevents employees from using substances or illegal drugs while at work, on county property, in county vehicles, or while reporting to work under the influence, the appeals court pointed out that the CBA also prohibits employees from using drugs ‘at any time while employed by Hillsborough County Fire Rescue, other than alcohol or prescribed medications.” Explaining that the “at any time while employed” language “is not an idle appendage,” the court found the language reasonably reflects an expectation of continuous fitness and readiness, not merely the absence of observed impairment during scheduled duty hours. “The order’s analysis, by imposing a workplace-only limitation that the text does not contain, substitutes the trial court's narrower rule for the broader rule adopted in the CBA.”

Florida Constitution. Turning to the Florida Constitution, the appeals court found it does not create an accommodation mandate. The limitation clause of article X, section 29(c)(6) states that “[n]othing in this section shall require any accommodation of any on-site medical use of marijuana in any... place of education or employment, or of smoking medical marijuana in any public place." While the trial court reasoned that the provision requires people to be able to use medical marijuana in private and that “Qualified Patients” be allowed to use medical marijuana off site and employers must make accommodations, this, said the appeals court, manufactured an affirmative accommodation mandate solely by negative implication. “Applied here, the trial court’s negative implication reasoning does not interpret the amendment; it rewrites it.”

Implementing statute. Moreover, the court stated, Section 381.986 of Florida’s implementing statute preserves an employer's discretion to refuse accommodation of medical marijuana at all in the workplace and separately preserves an employer's discretion to refuse accommodation for an employee working under the influence. “Florida’s medical marijuana provisions do not constitutionalize continued public employment, and they do not prohibit an employer—or a collectively bargained-for agreement—from imposing and enforcing stringent fitness-for-duty standards in a safety-sensitive setting.”

FCRA claim. As to the firefighter’s claim the county violated the FCRA by refusing to accommodate his medical marijuana use, the appeals court found the accommodation the trial court ordered was not an accommodation required by Florida's medical marijuana framework, the CBA, or the county’s policy. Section 381.986(15), the court observed, preserves an employer’s authority to “establish, continue, or enforce a drug-free workplace program or policy,” and makes clear that the medical marijuana statute does not require workplace accommodation of medical marijuana or create a marijuana based wrongful discharge or discrimination cause of action.

While the trial court treated Florida’s medical marijuana framework as creating an affirmative accommodation mandate and then used that perceived mandate to impose FCRA liability, its judgment, said the appeals court, rests on that erroneous premise and the trial court identified no independent FCRA basis requiring the county to convert the firefighter’s positive marijuana test into a negative result. Thus, this claim failed.

Wrongful termination. His wrongful termination claim, said the court, not only failed for the same core reasons, to the extent it “is best understood as a marijuana-based wrongful discharge or discrimination theory—as opposed to a pure contract claim—the legislature has directly addressed that framing: the implementing statute ‘does not create a cause of action against an employer for wrongful discharge or discrimination.’”

Failure to update policy. Regarding the firefighter’s claim the county failed to update or amend it drug-free workplace policy, the court found it failed because it sought relief courts cannot grant—an alteration of workplace policy for a coordinate branch of local government. “The trial court’s countywide, prospective command that the County must ‘provide an accommodation’ to any employee who produces a medical marijuana card after testing positive is not statutory interpretation; it is policymaking of the most direct kind. And it is absolutely forbidden by our constitution.”

Breach of contract. Finding that the firefighter’s breach of contract claim also could not stand, the appeals court explained that “the trial court found a breach only by first expanding the contract’s limiting terms into something they are not. Courts are not authorized to ‘rewrite a contract’ to supply materially different terms than the parties chose.”

Scope of relief. Finally, said the court, the breadth of relief ordered by the trial court would independently require reversal even if the merits were closer. “That sweeping, forward-looking directive is indistinguishable from injunctive relief running in favor of nonparties and across all County employment contexts, yet this is not a class action and our record confirms the nonexistence of pleadings seeking any sort of injunction, never mind broad, systemwide relief that effectively constitutes a mandatory injunction.”

The case is No. 2D2025-0115.

Judge: Labrit, S.

Attorneys: Michael C. Minardi (Minardi Law) for Angelo Giambrone. Stephen M. Todd, Senior Assistant County Attorney, for Hillsborough County.

Cases: Discrimination PublicEmployees Cannabis StateLawClaims ContractClaims FloridaNews