Illinois pot law presents hazy legal situation for employers

Businesses struggle to reconcile drug policies with medical marijuana legalization

By Ameet Sachdev, Chicago Tribune reporter

October  2013

Marijuana will soon be legal in Illinois as a prescription painkiller, but that doesn’t mean patients who test positive for pot can’t be fired from their jobs. At the same time, employers will not be able to discriminate against workers or applicants on the sole basis of their status as medical marijuana patients.

Are you dazed and confused?

The legalization of medical marijuana, coming Jan. 1, presents some thorny workplace issues, especially since federal law continues to ban marijuana use. The language in the Illinois law sets up a potential clash between a drug-free workplace and patients’ rights.

Employers in Illinois are struggling to reconcile their drug policies with the new right to get high. The Illinois Chamber of Commerce has held a dozen webinars on the matter, and all of them have sold out, said Todd Maisch, executive vice president.

Human resource managers are wrestling with such questions as whether employees who use marijuana before they come to work might be too impaired to do their jobs, what they are allowed to ask job candidates and whether they can punish someone for engaging in what is now deemed legal activity.

“I’m still seeing a lot of confusion over the law,” said Tom Posey, an attorney at Faegre Baker Daniels in Chicago who represents businesses in employment-law issues. “There are protections in Illinois for both employers and employees, and that’s where we’re going to see conflict.”

Posey said some employers are under the mistaken impression that their hands are tied if a worker tests positive for marijuana and pulls out a prescription. But the Illinois law says that it does not “prohibit an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner.”

The legislation also states that employers are not prohibited from “disciplining a registered qualifying patient for violating a workplace drug policy.”

Such employer protections are modeled after laws in other states. Since 1996, 20 states and Washington, D.C., have enacted laws allowing medical marijuana.

Most states carve out exemptions for employers, letting them ban use on the premises and on-the-job intoxication. And decisions to terminate employees for positive drug tests resulting from medical marijuana use have been upheld by courts in some states.

A recent case in Colorado involved Chicago-based MillerCoors. In 2012, Paul Curry, a former maintenance mechanic, sued the beer-maker for wrongful termination after he was fired for testing positive for marijuana. Curry, who was 57 at the time he filed suit, had a Colorado license to use marijuana to treat hepatitis C, arthritis and a back injury, according to court documents.

According to Curry’s suit, he only used the drug within the limits of the license, never used it on the company’s premises and was never under the influence at work. He claimed that his firing violated the employment discrimination provisions under Colorado law and invaded his privacy.

A federal judge in August granted MillerCoors’ request to dismiss the case. The court found that the positive drug test, whether from medical or any other use, was a legitimate reason to fire him under Colorado law. The judge also rejected Curry’s privacy claim.

MillerCoors declined to comment on the case. Curry’s lawyer did not return calls for comment.

Illinois adopted explicit statutory language that allows employers to discipline a worker for failing a drug test. To medical marijuana proponents, the provision is unfair because it puts cannabis patients at a disadvantage to those taking prescriptions for oxycodone, morphine and other narcotic painkillers.

The active ingredient in pot, tetrahydrocannabinol, or THC, can be detected in the body for weeks and sometimes longer. If someone consumes oxycodone and gets tested three weeks later, the test won’t be positive, said Chris Lindsey, a legislative analyst with the Marijuana Policy Project, which lobbied for the legislation in Illinois.

“We think there’s a fundamental disconnect,” Lindsey said. “If citizens believe medical marijuana should be an option, does it make sense that employers can work around the law by having a zero tolerance for drug use?

“The law really places patients in a difficult position with respect to employment. But it’s better to have a law than not to have one at all.”

Maisch of the chamber of commerce said he helped insert the employer protections into the legislation after some lawmakers came to him with concerns about how medical marijuana would affect the business community.

“We think employers are pretty well positioned with the law,” Maisch said.

But that doesn’t mean marijuana patients have absolutely no protections on the job. Employers can’t discriminate in hiring and promotions based on one’s medical marijuana status unless they face restrictions under federal law. The U.S. Department of Transportation, for example, prohibits the use of medical marijuana for pilots, school bus drivers, truck drivers and other safety-sensitive jobs.

In a legal article published in August, Cheryl Orr, co-chair of the labor and employment practice group at Drinker Biddle & Reath, also suggested that the statute may offer other civil employment protections for workers. For example, one provision appeared to narrowly tie the ability to discipline a medical marijuana patient for failing a drug test to those specific employers connected to federal work or funding.

The framework, she wrote, “creates a plausible argument that the statute does provide protections” for medical marijuana users in the private sector.

What’s certain is that the Illinois law is likely to be tested in the courts. Even Maisch is resigned to that.

“I’m sure there will be a court case along the way that will challenge the employer protections,” he said.

Twitter @ameetsachdev

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