Should a Florida corrections officer have been fired over medical Marijuana use?

The Department of Corrections has a “zero tolerance” policy. The former officer is suing.

TALLAHASSEE - In what could be a first-of-its-kind case in Florida, a former state correctional officer is asking an appeals court to overturn his dismissal for using medical marijuana.

Samuel Velez Ortiz, who was a sergeant for the Florida Department of Corrections, was approved by a doctor to use medical marijuana to treat post-traumatic stress disorder related to previous military service, according to documents filed in the case. He tested positive for marijuana last year during a random test, ultimately leading to his firing under a Department of Corrections “zero tolerance” policy.

Velez Ortiz took the dispute to the 1st District Court of Appeal after the state Public Employees Relations Commission upheld the dismissal in January. His attorneys point, in part, to a 2016 state constitutional amendment that broadly authorized the use of medical marijuana in Florida and say Velez Ortiz did not use the substance while on duty.

“The department attempts to cloud the main issue of this case by ignoring the fact that appellant (Velez Ortiz) was terminated for being a legal medical marijuana user,” the attorneys wrote in a July brief. “The department implies that appellant was seeking to use medical marijuana ‘on site.’ Nothing could be further from the truth. The case before this court is not about having accommodations for on-site use of medical marijuana; rather, it revolves around the discrimination against appellant for being a medical marijuana user. More importantly, not once did appellant possess or use medical marijuana while on the department’s premises, during work hours or attended work under the influence of medical marijuana.”

But lawyers in Attorney General Ashley Moody’s office in a brief this month wrote that the Department of Corrections’ drug-free workplace policy and “procedures implementing that policy reveal zero tolerance for employee use of medical marijuana.”

“Velez Ortiz does not dispute that the department may validly prohibit correctional officers from being under the influence of marijuana, including medical marijuana, while on the job, no matter whether the officer ingested that substance on or off site,” the Nov. 16 brief said. “Yet the department has no way to distinguish between an officer who is high on the job because he ingested medical marijuana from a person who ingested the same drug off-site. The result would be untenable risks to public safety. A correctional officer who shows up to work high or experiencing the lingering effects of marijuana — including lack of focus and delayed reaction times — may not trigger alarm bells until the worst-case scenario has already come to pass.”

The Florida Sheriffs Association filed a friend-of-the-court brief Monday backing the department, saying employers have the authority to enforce drug-free workplace policies.

“Put bluntly, sheriffs and other employers have the clear authority to terminate an employee who violates their policies by testing positive for any marijuana — recreational or medicinal,” the association’s brief said.

The briefs filed by Velez Ortiz and the sheriffs association describe the dispute as being a case of “first impression” in Florida — a legal expression indicating the issues have not been considered previously by courts.

Velez Ortiz began working for the Department of Corrections in 2013 and had been diagnosed by the U.S. Department of Veterans Affairs with combat-related post-traumatic stress disorder, according to the Jan. 11 decision by the Public Employees Relations Commission. He tried prescription drugs to treat the PTSD, but they had undesired side effects.

A doctor approved what is known as a “registration card” that allowed Velez Ortiz to buy medical marijuana under the 2016 constitutional amendment and a related 2017 state law. Velez Ortiz and two other Department of Corrections employees tested positive for marijuana during random testing in May 2021, according to the commission decision.

The two other employees later provided notes from physicians confirming that they were no longer using medical marijuana and remained employed with the department. But Velez Ortiz provided a note from his doctor to “support his continued use of medicinal marijuana,” leading to his dismissal, the commission decision said.

While the briefs do not indicate where Velez Ortiz worked, a July 2021 dismissal letter filed in the case was signed by Joseph Edwards, warden of the department’s Reception and Medical Center in Lake Butler.

A hearing officer in November 2021 recommended upholding Velez Ortiz’s dismissal — a recommendation that was approved in the decision by the Public Employees Relations Commission.

“This case turns on the fact that even though medical marijuana is legal under Florida law, the department has adopted a blanket policy prohibiting any use of marijuana,” the commission decision said. “It is not our prerogative to rewrite the department’s drug-free workplace policy or question its wisdom.”

But in their brief, attorneys for Velez Ortiz wrote that medical marijuana “should be treated just as any other medical drug that requires a qualified physician to prescribe the use of it, and a ‘qualified patient’ should not be discriminated against like any other medical patient.”

“This court should find the department’s policies provide for an employee to present proof of his legal use of the substance that resulted in a positive test and that the definition of prescription and non-prescription drug includes medical marijuana pursuant to Florida statutes,” the brief said. “This court should reverse the department’s order and require the department to reinstate the petitioner to his prior position with back pay and all accrued seniority.”