As an EMS defense lawyer, I have spent my career representing and defending paramedics, EMTs, firefighters, nurses and other public-safety professionals when their careers collide with laws, regulations, policies and administrative systems that do not always fit neatly together. So, I will admit my bias at the outset.
I believe genuine, legitimate medical care received off duty should generally be protected. If a firefighter-paramedic lawfully uses medically authorized marijuana, does so away from work, never comes to work impaired and remains fully capable of safely doing the job, the logical position is that the employee should not lose a career over it.
It is pretty simple: just because an agency can fire an employee, does not mean it should.
But I am also a lawyer and an officer of the court, and I am bound to analyze issues through the prism of the law as it is, not how I think it should be. That distinction is at the center of the Florida case involving Hillsborough County firefighter-paramedic Anthony Giambrone.
| MORE: Fired Fla. FF/paramedic plans appeal to state Supreme Court in medical marijuana case
What happened?
Giambrone tested positive for a marijuana metabolite during a random drug test in 2019. Importantly, this was not a post-accident test; there was no reported allegation that he was impaired at work, used marijuana on duty or had demonstrated unsafe performance. He had a Florida medical-marijuana card, he used it off duty and away from work. He was fired.
The dispute that followed eventually reached Florida’s Second District Court of Appeal, which ruled in favor of Hillsborough County.
The case has attracted attention because it sounds, at first blush, like a straightforward question: Can an employer punish a firefighter for legally authorized medical marijuana use away from work?
Unfortunately, the law rarely gives us questions that simple.
The employee has a compelling argument
Let’s start with basic fairness. If an employee has a legitimate medical condition, sees a licensed physician and receives lawful medical treatment, why should an employer care what therapeutic medication that person uses at home so long as the employee reports for duty capable of safely performing the job?
We do not ordinarily discipline employees simply because they took a prescription painkiller, sleep medication or another potentially impairing drug the night before.
We care whether that medication affects their ability to work safely — when they are at work.
That distinction is especially critical in the context of marijuana, because a positive drug test does not necessarily establish current impairment. THC metabolites may remain detectable long after the intoxicating effects have passed. Put differently, the laboratory may tell us that marijuana was used but cannot say whether the firefighter standing in front of us at 8 a.m. is impaired. Can you see the difference? Hillsborough County does not.
Unfortunately, Hillsborough County has strong legal arguments
This is where personal belief must yield to legal analysis. Giambrone’s collective bargaining agreement prohibited covered employees from using drugs while employed by the department, with an exception for prescribed medications. Most agencies do.
The problem is that Florida’s medical-marijuana system did not traditionally treat marijuana like an ordinary pharmacy prescription. Physicians issued certifications or recommendations rather than conventional prescriptions, and the appellate court concluded that Giambrone’s marijuana therefore did not fit within the CBA’s prescription exception.
Of course, Florida law also creates another obstacle. Florida’s medical-marijuana provisions protect qualified patients from certain state criminal penalties, but they do not clearly create a broad employment right requiring employers to accommodate marijuana use. Florida law also expressly preserves employers’ ability to maintain “drug-free” workplace policies.
So, we take it to court, and courts interpret laws; they do not get to rewrite them because a different outcome might seem fairer. If Florida voters or legislators wanted to say, “An employer may not discipline an employee for lawful off-duty medical-marijuana use absent workplace impairment,” they could say exactly that. They have not clearly done so. That makes Giambrone’s legal position much more difficult than his fairness argument.
As always, public safety changes the equation
There is also a fact we cannot ignore: This employee is a firefighter-paramedic and paramedics drive emergency vehicles; administer powerful medications; perform invasive procedures; and make high-stakes decisions in seconds, frequently while exhausted, stressed and operating in chaotic environments.
Employers have an ethical obligation to patients, coworkers and the public to make sure those employees are “fit” for duty. That obligation is real and, perhaps, highest atop the list of duties to the public.
The difficulty is determining what “fit” means. A rule saying nobody may work while impaired by marijuana is easy to defend. A rule saying any detectable marijuana metabolite automatically means the employee is impaired is considerably harder to defend scientifically and ethically, and those are not the same proposition.
What happens next?
If Giambrone seeks review by the Florida Supreme Court, I think the most likely outcome is that the Court declines to take the case. Florida’s Supreme Court does not automatically review every important appellate decision, and this case involves a fairly specific combination of Florida law, a particular collective bargaining agreement and a particular employer policy.
If the Court does accept review, I still believe, unfortunately, Hillsborough County has the stronger legal position under the existing statutory and contractual framework. That does not mean every firefighter who uses medical marijuana will necessarily lose every future case — far from it.
One potentially important issue is whether disability-discrimination laws may independently require an employer to consider reasonable accommodation, even where the medical-marijuana law itself does not create an employment right. Other states have confronted that question differently, and Florida courts will almost certainly see it again. This issue is not going away.
What about the U.S. Supreme Court?
I would be surprised if the United States Supreme Court accepted this particular case.
The reason is procedural more than philosophical. This dispute can largely be decided under Florida law, Florida constitutional provisions, the collective bargaining agreement and the employer’s policies. The major federal preemption arguments were not cleanly preserved as the central issue in the litigation.
The United States Supreme Court generally does not take cases simply to answer an interesting question when the judgment can stand on independent state-law grounds — although that would be fun. Eventually, however, the Court is probably going to have to address the larger national conflict between state medical-marijuana protections, federal controlled-substance law and employment rights. When it does, I suspect the answer will be far more nuanced than “marijuana is federally illegal, therefore the employee loses.” Federal marijuana law itself is changing, and the legal landscape today is not the same one that existed when Giambrone tested positive in 2019.
Where I land
This is one of those cases where what is legal and what is right are out of sync. Based on the law as it exists, I understand why Hillsborough County prevailed. As a matter of doing what is right, however, I think we should be very careful about ending the career of an otherwise competent public-safety professional based solely on evidence that he used medically authorized marijuana away from work. If the County were to ask me, and they are definitely never going to ask me, I would suggest they reinstate this provider, allow him to continue to care for the community, and rethink their policies as if it were 2026 and not 1976.
Ultimately, the goal should be fitness for duty, not punishment for the mere presence of a metabolite.
Marijuana use in first responders: The bottom line
If an employee is impaired at work, protect the public. If an employee violates a legitimate safety rule, enforce it. If an employee abuses marijuana under the guise of medical treatment, deal with that honestly too.
But if a firefighter-paramedic receives genuine medical treatment, uses marijuana responsibly while off duty, and reports to work unimpaired and capable of performing every essential function of the job, we should at least recognize that automatic career-ending discipline does not serve public safety; it simply preserves an outdated bright-line rule.
There is certainly a moral difference between therapeutic drug use, recreational drug use and drug impairment; the law has not fully caught up with that distinction. It probably will — I hope it does, and I hope it does in time to preserve this provider’s career. When it does, EMS agencies, labor organizations, medical directors and public-safety attorneys would be wise to have already thought carefully about which side of that line they actually intend to defend.
