All posts by stu

Employee Rights, Fair Labor Standards Act, FLSA, General HR Questions, Overtime, Payroll, Release, Risk Management, Severance agreement, Wage and Hour

Employee Releases Don’t Always Protect Employers: Unpaid Wage Claims Not Waived

Employers frequently use severance agreements, settlement agreements, and general releases to resolve employment disputes and limit future legal claims. However, a recent federal court decision serves as an important reminder that a general release of claims does not necessarily protect an employer from unpaid overtime claims under the Fair Labor Standards Act (FLSA).

In Adams v. Enplas USA, Inc. (decided September 28, 2026), the U.S. District Court for the Northern District of Georgia examined a release agreement signed by an employee in connection with a workers’ compensation settlement. The employee later filed a lawsuit alleging discrimination, retaliation, and unpaid overtime. Although the court determined that the broad release prevented the employee from pursuing his discrimination and retaliation claims, it ruled that the employee could still pursue his FLSA overtime claim. The decision did not establish that overtime wages were owed, only that the release did not bar the claim.

Why are FLSA claims different? Unlike many other employment-related claims, rights to minimum wage and overtime compensation under the FLSA generally cannot be waived through a private agreement. Under controlling principles in this Circuit, resolving disputed FLSA overtime claims typically requires either supervision by the U.S. Department of Labor or court approval of a settlement reached in an employee-filed lawsuit. Simply including language releasing all employment-related claims in a severance or settlement agreement is not sufficient to eliminate these federally protected wage rights.

For employers, particularly small businesses that routinely use separation agreements, this decision highlights an important HR compliance risk. A signed general release should not be viewed as protection against potential wage-and-hour claims and alleged violations. Before finalizing a severance or settlement agreement, employers should review whether the employee may have outstanding overtime, off-the-clock work, or other unpaid wage issues. If an FLSA dispute exists, employers should work with employment counsel to determine the appropriate resolution process rather than relying on a standard release.

Key Takeaway for HR professionals and business owners. A properly drafted separation agreement is a valuable risk-management tool, but it does not substitute for compliance with federal wage-and-hour laws. Regular payroll audits, accurate timekeeping, proper employee classifications, and careful review of separation agreements can help reduce costly employment disputes. At Consultstu, we encourage employers to periodically review their payroll practices and HR documentation to identify compliance gaps before they become lawsuits.

Commercial Motor Vehicle Driver

HR Insights: Can Employer Skip 401k Deferrals on Bonus Checks?

A common question arises as year-end approaches and companies prepare to distribute performance bonuses: Can an employer turn off 401(k) deferrals for a bonus payroll? The short answer is yes, but doing so without reviewing the organization’s official 401(k) plan document can result in costly compliance failures.

Pitfall of “Compensation” Definitions
In the world of retirement plans, the plan document rules everything. Most 401(k) plans define eligible compensation using broad IRS definitions, such as W-2 wages. Under this standard definition, bonuses are automatically considered eligible compensation. If an employer manually toggles off 401(k) deductions in their payroll platform for a bonus run without a matching plan provision, they have committed an operational failure.

According to the IRS, failing to implement an employee’s deferral election on eligible compensation means the employer must fix the mistake. This typically requires funding a Qualified Non-Elective Contribution (QNEC) to make the employee whole out of pocket, plus paying for missed employer matching contributions and lost market earnings.

There are two ways to legally skip 401(k) deductions on a bonus check:

  1. Plan Document Exclusions: The underlying adoption agreement or plan document must explicitly exclude bonuses from the definition of plan compensation. If it does not currently exclude them, the company must work with its Third-Party Administrator (TPA) or recordkeeper to formally amend the plan.
  2. Separate Employee Elections: If the plan permits, employers can allow employees to submit a separate, specific deferral election for bonus payrolls, allowing them to choose a 0% deferral for that specific check.

Employers should also note that explicitly excluding bonuses can complicate mandatory year-end testing. The IRS requires plans to pass Section 414(s) compensation testing to ensure that the definition of compensation does not discriminate in favor of highly compensated employees (HCEs), who often receive larger proportional bonuses. Before making any adjustments in a payroll system, payroll should verify their plan document or consult their TPA to avoid triggering an expensive IRS correction process. Here are some additional resources to review.

Commercial Motor Vehicle Driver, Company Driver Policy, Drivers, HR Compliance, Payroll, Wage and Hour

Company Truck Got a Red Light Camera Ticket in Florida? What Owners Need to Know

If your business owns pickups, work trucks, or service vans, you have probably opened a Notice of Violation from a city or county red light camera program. Because the truck is registered to the company, the notice is addressed to the company. Many owners simply pay the $158 and move on. That habit costs real money over a year, and it removes accountability from the person who actually ran the light. Florida law gives vehicle owners a better option: a sworn affidavit that identifies who was driving. Used correctly and backed by solid HR policy, it puts the citation where it belongs. (FL Stat 316..0083)

Florida’s Red Light Camera Law

Red light cameras in Florida are governed by Section 316.0083, Florida Statutes. When a camera captures a violation, the registered owner is presumed responsible unless the owner establishes, by sworn affidavit, that a statutory exemption applies. The most common exemption for employers is that the vehicle was in the care, custody, or control of another person at the time. In the Notice of Violation (NOV) stage, the company may pay the penalty (typically $158), request a hearing, or submit an affidavit. Action is required within 30 days from the citation’s issuance.

Using the Affidavit Process to Shift Citation to Driver

Florida allows for a shift of responsibility to the driver. Step 1: Identify the Driver. Match the date, time, and location on the notice to your truck assignment log, GPS/telematics data, fuel card records, or crew schedules. Review the photos or video link on the notice. Step 2: Talk to Employee. Show the employee the images and confirm they were driving. Step 3: Get Current Affidavit form. Use the form included with the notice or posted by the issuing city, county, or clerk. Forms vary by jurisdiction. Step 4: Complete Driver Information and Sign. Florida requires the name, address, date of birth, and, if known, driver license number of the person who had care, custody, or control of the vehicle. An authorized company officer or manager signs on the company’s behalf, and most forms must be sworn before a notary. Step 5: Submit Within Deadline. Send it to the agency listed on the notice, by a trackable method if mailed, and keep a copy with the confirmation. Once received the agency will dismiss the citation and reissue a new notice to the named driver.

HR Policies That Make This Work

To help make this process work for your company, there are some recommended policies. In your Company Vehicle Use or Driving Policy, state that drivers are personally responsible for traffic and camera violations in company vehicles and that the company will transfer liability by affidavit when permitted by law. It is best practice to have every driver sign an acknowledgment. Maintain accurate records of the trucks assigned to employees, and consider telematics and GPS systems to identify the driver with great accuracy. Transferring the citation is a cleaner option that paying it and deducting it from wages. There are specific wage and hour rules for making deductions from salaried and hourly employees. Maintain records on notices, affidavits and truck assignment logs, along with insurance paperwork, for easy access.

Every red light camera ticket on a company truck creates a choice: pay for an employee’s driving or hold the driver accountable through a simple, legal process. #redlightcamera #316.0083 #floridafleetpolicy

Compliance, Employee benefits, General HR Questions, Group Health Insurance, HR Compliance, HR Costs, Insurance, Medicare

Steering Employees to Medicare: Helpful Savings Strategy or Costly HR Violation?

As Florida’s workforce matures, more small and mid-sized businesses (SMBs) are navigating a scenario where valued employees continue working past age 65. Naturally, business owners and decision-makers often notice the high cost of group health insurance and ask a logical question:
“Can we reimburse or give a financial incentive to our Medicare-eligible employees to leave our group health plan and opt for Medicare instead?” It seems like a win-win strategy—the company saves on high health plan premiums, and the employee gets dedicated coverage designed for ther needs. However, under federal law, the short answer is a strict no.
Before attempting to shift employees to Medicare, Florida employers need to understand the Medicare Secondary Payer (MSP) rules and how the Coordination of Benefits works for small vs. mid-sized companies.

Can You Pay an Employee to Enroll in Medicare?

No. Under Section 1862(b) of the Social Security Act (the Medicare Secondary Payer law), employers are explicitly prohibited from offering financial or other incentives to Medicare-eligible employees to decline company coverage or switch to Medicare. The federal government does not want employers shifting costs to the public. Violations can result in severe financial penalties—up to $10,000+ per violation—from the Centers for Medicare & Medicaid Services (CMS).
Prohibited actions include:

  • Offering cash bonuses or higher pay if an employee chooses Medicare over the company plan.
  • Reimbursing employees directly for Medicare Part B or Part D premiums outside of a compliant formal structure.
  • Directing or pressuring older employees to drop group coverage.

Coordination of Benefits: Small vs. Mid-Sized Businesses

How Medicare interacts with your health plan depends entirely on your employer size. In Florida, where many businesses fall under either the small employer or mid-sized umbrella, the threshold to remember is 20 employees. If an employee has Medicare and an employer policy, here is how the policies interact:

Employer SizePrimary PayerSecondary PayerKey Compliance Note
Fewer than 20 Employees (Small Business)MedicareEmployer Group Health PlanEmployees aged 65+ generally must enroll in Medicare Part A & B for full coverage, as the employer plan pays second.
20 or More Employees (Mid-Sized Business)Employer Group Health PlanMedicareEmployer plan remains primary. You cannot force or incentivize employees to switch to Medicare.

How Florida Employers Can Compliantly Support Older Employees

While you cannot incentivize employees to drop coverage, you can educate them and leverage compliant benefit structures:

  1. Provide Neutral Education: You (or your knowledgeable agent) are permitted to share objective information about how Medicare works alongside company health coverage so employees can make informed choices.
  2. Utilize Compliant HRAs (ICHRA/QSEHRA): If your business transitions from a traditional group health plan to an Individual Coverage Health Reimbursement Arrangement (ICHRA) or Qualified Small Employer HRA (QSEHRA), eligible employees may use pre-tax employer contributions toward individual health plans, including Medicare premiums—provided the benefit is offered consistently across an entire employee class.
  3. Offer Opt-Out Cash-Out Options (Carefully): If your company offers a taxable cash-in-lieu of benefits program, it must be offered to all employees who opt out of coverage, regardless of age or Medicare eligibility. It cannot target Medicare-eligible workers.

Navigating Health Benefits

Managing employee benefits compliance doesn’t have to be overwhelming. Partnering with a Health Insurance consultant or employee benefits broker that knows the rules and ensures your business stays compliant with MSP rules while optimizing benefit costs.

Americans with Disabilities Act, Discrimination, Drug Free Workplace, Employment Application, Job Description, Medical Exams, Post offer medical questionnaire

Post Offer Medical Questionnaires in Florida: Safer Alternatives for Small and Mid-Sized Businesses

Many Florida business owners hand new hires a long medical questionnaire after making a job offer. The goal is understandable: spot pre-existing medical conditions and protect the company from workers’ compensation claims. But that questionnaire may be creating more risk than it prevents.

As an HR consultant working with small and mid-sized Florida businesses, we hear this question often: “Is there a less intrusive way to protect ourselves?” The answer is yes. Here’s why the traditional medical questionnaire creates some problems, and what methods may work better.

Why Broad Medical Questionnaires Can Backfire

Under the Americans with Disabilities Act (ADA), employers with 15 or more employees may ask medical questions after a conditional job offer. Florida also has its own Civil Rights Act, and some Florida counties and cities have local anti-discrimination ordinances. The rules are strict, though:

  • The same questions must go to everyone entering the same job category (all hires for that job, not just to some).
  • Answers must be kept confidential and stored separately from personnel files.
  • An offer can be withdrawn only for medical reasons that are job-related and consistent with business necessity.

Broad medical questionnaires create three common problems (and a sloppy medical inquiry process may invite liability):

  1. You collect more than you need. Information about an employee’s unrelated health history can become evidence in a discrimination claim later, even if you never acted on it. You knew about it.
  2. GINA violations are easy to make. The Genetic Information Nondiscrimination Act prohibits asking about family medical history. Some off the shelf medical questionnaires may include family history questions.
  3. Withdrawn offers invite lawsuits. If you pull an offer after reviewing medical responses, you’ll need to prove the decision was tied to the essential functions of the job. Sometimes learning about medical history will create other concerns, even if the employee is capable of performing the essential duties. Just being afraid that an employee might get hurt, is not enough to revoke an offer.

Screen for the Job, Not a Person’s Medical History

1. Write accurate job descriptions with physical demands

List each role’s essential functions and physical requirements, such as lifting limits, hours on your feet, climbing, standing and repetitive motion. Clear written job descriptions set expectations and form the foundation for every other step below. Applicants can be asked about capabilities (needed for the job) and they can be asked to sign their job description.

2. Use a signed ability acknowledgment

Ask each new hire to sign a statement confirming they can perform the essential functions with or without reasonable accommodation. This focuses on ability rather than diagnosis, or existing medical conditions. Applicants can be told about the physical requirements of a position, and these required capabilities can be put into a New Hire Questionnaire that can be completed with an Application.

3. Consider job-specific physical ability testing

For physically demanding roles, a post-offer test that simulates real job tasks (for example, lifting 50 lbs to shoulder height) measures capability directly. It must be based on the actual job and applied consistently to everyone in that role. Companies can look for a local occupational medical clinic or doctor to see what services are available.

4. Narrow your questionnaire if you keep one

If you prefer to keep a post offer medical questionnaire, limit it to questions tied to the job’s essential functions. Remove family history and general health questions, and include GINA safe-harbor language. Keep the form short and work focused. All medical related documents should be kept out of the employee’s normal personnel file, and instead stored in an employee medical folder.

Bottom Line

A broad post offer medical questionnaire gives you a lot of sensitive information and only a little bit of protection (and assuming the person is being honest). A better approach for Florida small and mid-sized businesses is to consider the following actions: (1) Replace general medical questions with clear job demands and a signed job capabilities acknowledgment or job description; (2) investigate the use of job-specific ability testing where physical requirements are significant; and (3) invest in other ways to prevent or limit workers’ compensation claims, such as safety training, injury prevention, a drug-free workplace program, and return-to-work options. This combination of actions lowers your workers’ comp costs and your legal exposure at the same time.


Fractional HR, General HR Questions, HR Compliance, Overtime, Salaried employees, Wage and Hour

Can Any Employee Be Paid on a Salary?

That’s not the question that actually matters. The real question for small business owners is: “Does paying this person a salary let me skip paying them overtime?” And the answer to that is usually more complicated than they expect. This mix-up is one of the most common — and most expensive — mistakes small employers make. Let’s clear it up.

The Myth: “Salary = No Overtime”

A lot of business owners believe that once you put an employee on salary, overtime rules disappear. That’s not true. Salary is just a method of payment — a fixed amount per pay period, regardless of hours worked. It has nothing to do, by itself, with whether an employee is legally exempt from overtime. Whether an employee is truly exempt (not owed overtime) depends on meeting three separate tests under the Fair Labor Standards Act (FLSA). Miss any one of them, and the employee is non-exempt — meaning they’re owed time-and-a-half for every hour worked over 40 in a week, salary or not.

The Three Tests for Exemption (All must be met)

1. Salary Basis Test
The employee must receive a salary that is a fixed, predetermined amount each pay period that doesn’t fluctuate based on hours worked or quality of work.

2. Salary Level Test
As of 2026, the employee must earn at least $684 per week ($35,568 per year) under federal law. This amount has fluctuated, up and down, over the years. Florida follows the federal number, so if you’re an employer with only Florida-based employees, $684/week is your line. If you have employees working in other states, check those states’ rules separately.

3. Duties Test
This is the part employers overlook most. The employee’s actual day-to-day job duties — not their title — must primarily fall into one of the recognized exemption categories. Read DOL Fact Sheet.

Five Main Overtime Exemption Categories

Executive – Primary duty is managing the business or a department, regularly directs the work of at least two full-time employees, and has real input into hiring/firing decisions. Read more.

Administrative – Primary duty involves office or non-manual work directly related to business operations, and includes exercising independent judgment on significant matters. Read more.

Professional – Work requires advanced knowledge in a field of science or learning, typically acquired through specialized education (think accountants, licensed professionals) — or “creative professional” work requiring invention, imagination, or talent. Read more.

Computer Employee – Certain computer systems analysts, programmers, and software engineers performing specific technical duties. Read more.

Outside Sales – Employees whose primary duty is making sales away from the employer’s place of business, with no salary minimum required for this one. Read more.

Common Mistakes Small Employers Make

  1. Assuming a job title settles it. Calling someone a “Manager” or “Supervisor” doesn’t make them exempt. What matters is what they actually do most of the time — not what’s printed on a business card.
  2. Exempting someone because “everyone else in the industry does it.” Industry norms aren’t a legal defense. Each role has to be evaluated on its own facts, and each position must fit its own exemption.
  3. Docking pay from salaried employees for partial-day absences. Exempt employees generally must be paid their full salary for any week they perform work, with very limited exceptions. Improper deductions can jeopardize the exemption entirely — for that employee and sometimes others in the same role.
  4. Forgetting to re-visit classifications as duties or pay change. A promotion, a pay freeze, or a shift in responsibilities can quietly turn an exempt role into a non-exempt one. Classifications aren’t “set it and forget it.”
  5. Not documenting the reasoning. If you’re ever audited or challenged, “I thought they qualified” isn’t enough. Keep a short written note for each exempt role explaining which duties and pay level support the exemption (which exemption applied and why).

Bottom Line: Paying someone a salary is simple. Classifying them correctly as “exempt” is not — it takes passing all three tests, not just picking a pay structure. Misclassification is one of the costliest wage-and-hour mistakes a small business can make, often resulting in back pay, penalties, and legal fees. Consultstu talks with small business clients about DOL exemptions every week, and we can help your small business too.

Compensation, Employment Poster, HR Compliance, HR Costs, Minimum Wage, Posters, Tipped Employees

Florida’s Minimum Wage Increasing to $15 – Is Your Business Ready

On September 30, 2026, Florida’s minimum wage rises to $15.00 per hour, up from $14.00, with the tipped minimum wage increasing to $11.98 per hour (a $3.02 tip credit still applies). This is the final scheduled step of the $1-per-year increases Florida voters approved via constitutional amendment in 2020 — and it’s a milestone worth pausing on. Starting in 2027, Florida’s minimum wage will no longer rise by a flat dollar amount each September. Instead, it will adjust annually based on inflation (CPI-W), with the new rate published and taking effect each January 1. In other words, the rhythm employers have gotten used to for six years will change.

What This Means for Florida Employers

  • Every employee earning below $15/hour must be raised to at least that rate by September 30. Tipped employees must receive a direct cash wage of at least $11.98/hour, assuming your business properly satisfies tip-credit requirements (notice, recordkeeping, and ensuring tips plus cash wage meet or exceed $15/hour).
  • Required workplace posting must be updated to reflect the new minimum wage. Visit the FloridaJobs website to download the latest Florida Minimum Wage poster.
  • Pay compression deserves a look: if your $15/hour rate now matches what you’re paying more senior or skilled hourly staff, you may need to adjust other employees upward to preserve pay differentials and morale.

Recommended Actions

  • Audit your pay rates now. Identify every employee — hourly, tipped, or otherwise — currently earning below $15.00 (or below $11.98 direct wage for tipped roles).
  • Update payroll and timekeeping systems to reflect the new rates effective September 30.
  • Refresh required notices and posters in break rooms or online employee portals. Check the FloridaJob website for the latest poster.
  • Reissue the tip credit notice to tipped employees, as required whenever the tip credit changes.
  • Review your full pay structure, not just the wage floor — check for compression against supervisors and longer term staff.
  • Budget for the shift to inflation-based adjustments starting in 2027. Rates will happen every January 1 based on CPI-W, which means smaller increases.

Bottom line: This is the last “big,” predictable jump in Florida’s minimum wage schedule, then moving to inflation-indexed adjustments.

Compliance, consultstu, Employee Handbook, Fractional HR, General HR Questions, HR Compliance, HR Resources, Risk Management

Florida Small Business HR Checkup: Is Your Company Due for an HR Refresh?

Running a small business in Florida means wearing a lot of hats, and HR compliance can easily become something that is handled only when a problem arises. Over time, employee files become inconsistent, forms become outdated, and Employee Handbook policies may no longer reflect current laws or the way the business actually operates. An HR refresh gives small businesses an opportunity to step back and review their employee files, hiring and termination documents, HR forms, job descriptions, leave practices, safety procedures, and Handbook policies before a compliance issue, employee complaint, unemployment claim, or workplace injury exposes a weakness.

Consider a Florida construction company with 28 employees. As the company grew, supervisors hired employees using different versions of offer letters, some personnel files were missing required documents, performance problems were handled informally through text messages, and the Handbook had not been reviewed in years. The company had good intentions, but its HR practices had not kept pace with its growth. After an HR review by Consultstu, the company standardized its new-hire process, reorganized and audited employee files, updated its Handbook and HR forms, and implemented consistent disciplinary documentation. These changes allowed the company to create proper hiring documentation and handle common employee issues with confidence. Even without full time HR, employee documentation became more consistent and the company was better prepared to respond to unemployment claims, workers’ compensation matters, attendance problems, and employee complaints. Just as importantly, management stopped making avoidable decisions—such as terminating employees without adequate documentation and using outdated forms. The HR Refresh project did not add unnecessary bureaucracy; it gave the company a practical HR system that better supported its operations and reduced risk.

For Florida small businesses, an HR Refresh review can be one of the simplest ways to identify problems before they become expensive ones. A periodic objective review of personnel files, HR forms, Employee Handbook policies, onboarding practices, and management procedures can reveal gaps that can be easy to correct today, but harder to address after a claim or dispute occurs. Consultstu’s fractional HR services can provide an affordable outside review of your existing HR practices, identify areas of risk, update outdated documents, and help put practical systems in place—giving small businesses access to experienced HR support without the cost of a full-time HR department.

Compliance, Fractional HR, HR Compliance, HR Costs, HR Resources, Human Resources, Job Description, Recruiting, Termination

Fractional HR Services for Florida Small Businesses: What It Is and Why It Works

Small businesses need professional HR support just as much as larger companies—but many do not need, or cannot justify, a full-time Human Resources person. Fractional HR services provide Florida businesses with access to experienced HR expertise on a flexible, part-time, or as-needed basis. Instead of hiring a full-time HR manager, a company can partner with an experienced Florida HR consultant who becomes an extension of its management team and provides practical support when it is needed. It also allows you to find the specific HR skills that are the best fit for your company’s needs.

Why Fractional HR works for small businesses in Florida. Fractional HR can be especially valuable as the company grows and employment issues become more complicated. Business owners and operations managers are often responsible for hiring, payroll, benefits, employee relations, compliance, and performance issues while also trying to operate the business. A fractional HR consultant can take some of these responsibilities off management’s plate while helping the company develop more consistent and professional HR practices.

Fractional HR services can cover virtually every stage of the employee lifecycle. Depending on the needs of the business, support may include: recruiting and onboarding (initial screening), employee policies and handbooks, job descriptions, performance reviews, accommodation requests, benefits admin, workplace investigations, disciplinary actions, terminations, workers’ compensation, and HR answers. Services can also include reviewing existing HR practices to identify areas where a growing business may have compliance or operational risks.

Flexibility is one of the biggest advantages of outsourced HR services for Florida small businesses. A company may need only a few hours of HR assistance each month, ongoing weekly support, help with a specific HR project, or immediate guidance when a difficult employee situation develops. Fractional HR allows the business to obtain the level of HR support it actually needs without adding another full-time salary and benefits package.

Compliance is a key benefit of fractional HR services. Florida employers must navigate changing federal employment requirements along with Florida-specific regulations affecting areas such as hiring, E-Verify, workers’ compensation, unemployment, safety, wage practices, drug-free workplace programs, and employee documentation. As a business adds employees or expands into other states, its compliance responsibilities can become even more complex. Having an experienced fractional HR partner available can help management identify issues earlier and make better-informed employment decisions and prevent costly mistakes and oversights.

Fractional HR consulting for small business is not simply about compliance. Good HR practices can also help a small business improve employment practices, reduce turnover, set clearer expectations, address performance problems sooner, and create a more consistent and engaged employee experience. Instead of waiting for employee problems to arise, businesses can build HR processes that support growth and reduce unnecessary risk.

Looking for fractional HR services or outsourced HR services in Florida? Consultstu provides affordable, personable and practical HR consulting and fractional HR support designed for small and growing businesses. We work with family businesses and companies in all industries. We work alongside owners and managers to strengthen HR practices, manage employee issues, improve compliance, and provide the HR expertise your business needs—when you need it.

Drug and Alcohol, Drug Free Workplace, HR Compliance, Human Resources, Medical Marijuana, Safety

Florida Medical Marijuana & Drug-Free Workplace Policies: New Court Guidance for Employers

In July 2026, Florida employers received important guidance on medical marijuana and workplace drug testing in the recent Florida appellate decision Hillsborough County v. Giambrone. The case involved a firefighter-paramedic with a valid Florida medical marijuana card who tested positive for marijuana under his employer’s drug-free workplace program. The court reinforced an important principle for employers: Florida’s medical marijuana law does not automatically require an employer to make an exception to an otherwise lawful drug-free workplace policy simply because an employee has a medical marijuana card.

For Florida HR and risk managers, the decision highlights the importance of having a clear, up to date and consistently enforced Drug-Free Workplace Policy. Employers should specifically address medical marijuana, positive marijuana test results, off-duty use, reasonable-suspicion testing, post-accident testing and safety-sensitive positions. Policies written years ago may not adequately address today’s medical marijuana environment or the practical challenges employers face when an employee presents a medical marijuana card after a positive test.

Employers should also recognize the difference between a positive marijuana test and evidence of workplace impairment. Marijuana testing can identify prior use without necessarily establishing that an employee was impaired at the time of testing. This makes supervisor training and documentation particularly important. Managers should understand how to recognize and document objective signs of possible impairment and when reasonable-suspicion or post-accident testing is appropriate.

Florida employers participating in the state’s statutory Drug-Free Workplace Program under Florida Statute §440.102 should take additional precautions. Maintaining a compliant program requires more than a handbook statement. Employers should identify and follow specific requirements involving employee notice, testing procedures, confirmation testing, Medical Review Officer review, confidentiality and employee challenges to positive results. The Florida statute contains all the details employers need to include in their comprehensive policy. Failure to follow the required procedures can undermine the protections and workers’ compensation benefits the program is intended to provide. To assist clients, Consultstu created a complete Drug Free Workplace Manual for Florida Employers.

The Giambrone decision is a good opportunity for Florida businesses to review policies before the next positive test, workplace accident or medical marijuana issue occurs. Consultstu provides Florida employers with HR and risk management support to create, update and review Florida Drug-Free Workplace policies, including medical marijuana language, reasonable-suspicion procedures, post-accident testing protocols, supervisor documentation and related employee forms.

The Florida Court of Appeals sided with the employer and supported employer policies designed to protect the safety of employees and the public. Key take aways: (1) A medical marijuana card is not a prescription since it is not dispensed from a pharmacist (it is authorized by physician certification); (2) medical marijuana law does not require accommodation and there is no cannabis exception; and (3) employer drug policies are not limited to on-duty conduct and that the governmental employer could reasonably have an expectation of continuous fitness for duty in a safety sensitive, first responder role.

A well-designed drug-free workplace program should protect a Florida employer while providing managers with a practical and consistent process to follow. With Florida’s marijuana laws and workplace issues continuing to evolve, employers should periodically review their policies to make sure their written requirements match both current law and actual workplace practices.

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