EMPLOYMENT CONSEQUENCES FOR EMPLOYEES USING
MEDICAL CANNABIS IN ILLINOIS
Although Colorado has the most relaxed marijuana rules in the U.S., the Supreme Court of Colorado ruled recently that companies have the right to fire workers who fail drug tests for using the cannabis. The decision delivered a major blow to proponents of marijuana legalization, but allowed companies to breathe a sigh of relief as the case could have had far reaching implications. In Colorado, workers are protected from being fired for carrying out legal activities outside of work. However, the court ruled that although marijuana is considered legal under Colorado law, it is still classified as illegal under federal law and therefore the employee's activities weren't protected. The decision underscored the many complications that stem from conflicting state and federal laws.
Basically, the court decided that federal law took precedence, and employers are within their rights when it fires employees for the positive drug tests. The case is a win for employers because the decision continues the trend of courts concluding that an employer can terminate an employee for testing positive. 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 while alcohol is out of the body within 24 hours.
410 ILCS 130/40 of the Illinois Compassionate Care Act makes clear that employers may not penalize a person solely for his or her status as a legal card holder or caregiver, unless failing to do so would put the employer in violation of federal law, or unless failing to do so would cause it to lose a monetary or licensing-related benefit under federal law or rules. Employers are not prohibited, however, from enforcing policies concerning drug testing, zero-tolerance for drug possession or use or drug-free workplaces if those policies are applied in a non-discriminatory manner. Additionally, Illinois remains an “at will employment” state.
410 ILCS 130/50 of the Act addresses specific issues related to employment and employer liability. Generally, the language of Section 50 minimizes the potential impact that the pilot has on workplace policies and employer liability. Specifically, the Act:
Because the Act creates new law, there will not be any controlling legal precedent interpreting the Act until these cases work their way through the legal system.
Still in the employment context, some courts have held that federal employment statutes such as the Americans with Disabilities Act and the Family and Medical Leave Act do not protect nor allow for the use of medical marijuana. Thus, permitting an employee to take breaks to smoke medically prescribed marijuana would not be a reasonable accommodation under the ADA. Federal agencies that promulgate and enforce employment standards, such as the Department of Transportation, have made it clear that a positive drug test for marijuana is a positive drug test, regardless of the source or reason for the presence of the drug.
In a related Illinois employment case favorable for employees is Illinois, Eastham v. The Housing Authority of Jefferson County and IDES, 2014 IL App. (5th) 130209 (5th Dist. Dec. 2, 2014), Eastham, a maintenance worker for the Jefferson County Housing Authority, was subject to random mandatory drug screening. After submitting to a test, Eastham then told a supervisor he did not believe he would pass the test, as he had smoked marijuana weeks earlier while on vacation. Eastham was fired for violating the Housing Authority's drug and alcohol fee workplace policy, and was not reinstated after the test results were negative.
Eastham appealed the agency's denial, which was upheld through administrative appeals, but ultimately overturned by the Circuit Court, which disagreed with the board reading of the “in the course of employment” provision, stating that, under “well-settled” Illinois law, the phrase only encompasses activity occurring “at a place where the worker may reasonably be in the performance of his duties and while he is fulfilling those duties or every breathing moment while employed.
If an employee's illicit off-duty use of marijuana does not provide grounds for firing and disqualify him from unemployment benefits, surely an authorized MMJ patient or responsible recreational user should be treated the same, even where the employer's drug-free workplace policy attempts to regulate that behavior. The reasoning behind the Eastham decision may not apply, however, to those with jobs affecting public safety, or in situations where the employer's policy is more closely tied to the employee's position and serves a legitimate employer concern. There is no one getting fired under similar circumstances when alcohol is the substance being used off the clock. As more and more states legalize recreational and medical marijuana, this is an issue that every marijuana consumer needs to keep in mind.
Bottom Line: Illinois employers will not have to significantly alter their policies and programs to comply with the new law and will not be required to permit employees to use or be under the influence of medical marijuana in the workplace.
Even if employers aren't embracing marijuana use, society appears to be. Nearly half of Americans report having tried it, and four states and the District of Columbia have legalized its recreational use. It is a matter of time before the laws catch up with the culture, and employers are not going to want to fire employees for using marijuana off the job and then go through the process of hiring and training. Employers in Illinois are struggling to reconcile their drug policies with the new right for an employee.
The law really places patients in a difficult position with respect to employment and will continue to do so until the feds change the drug classification of cannabis from a controlled substance to a valid form of medical treatment.
We are devoted to helping patients, doctors, growers and dispensaries become legal and stay legal in the complex and new arena of medical marijuana laws in Illinois. We help you to understand the new regulations and help to explain and simplify the process for state card holders, growers and dispensary ownership applications.
The new state laws are confusing, which is why you should rely on the help of a qualified legal team in order to avoid potential problems that may arise when exercising your state rights. Although medical marijuana was legalized in Illinois in 2013, the laws are the strictest among the twenty-three states who have allowed marijuana use of any type. Possession of marijuana continues to be illegal in the majority of the United States, and remains illegal under federal law.
Even though medical cannabis is now legal in Illinois, you can still get fired for using it. Pending in the Colorado State Supreme Court is a question of whether workers’ off duty use of cannabis is protected under state law. The lower courts ruled in favor of the employer. (http://www.thedailychronic.net /2013/17469/Colorado-appeals-court-rules-employers-can-fire-marijuana-users/).
The case involves a quadriplegic medical cannabis patient using cannabis for his muscle spasms. That worker was fired by Dish Networks after failing a drug test even after off premises use and no signs of impairment. The pending decision by the Colorado’s Supreme Court has far reaching implications for us in Illinois on how employers can treat employees who test positive for cannabis. Colorado, like most states, has a zero tolerance for workers testing positive for cannabis.
Other state Supreme Courts, California, Montana and Washington have ruled in favor of the employer. However, in Arizona the law states that an employer cannot punish an employee for lawfully using medical cannabis unless that would jeopardize the employer’s Federal Contract.
It is a certainty that a similar case ultimately will reach the Illinois Supreme Court. It is just a matter of time before an Illinois employee will be terminated for having a positive drug test with state approved medical cannabis. Just because other states allow employers to terminate workers for legal ingestion of cannabis, it is too early to determine whether Illinois will side with the employer or employee. Patients in Illinois will not receive medical cannabis till mid-year of 2015.
The new law allows the user no more than 2.5 ounces of marijuana over a two week period. This 2.5 ounce limit is for those who ingest it, not smoke it, such as in baked goods. It will also be vaporized in efficient aerosol devices.
Patients will shop at one of 60 dispensing centers throughout the state and are not allowed to grow their own. The cultivation process will be heavily monitored. There will be 22 cultivation centers registered within the state.
The law allows for a four-year pilot medical marijuana program starting January 1, 2014. To be eligible to take part in the program you must have a serious disease, such as cancer, HIV, MS, lupus, brain injury, etc. Locate a doctor in Central Illinois who understands the importance of marijuana as a viable medical tool for the treatment of your condition.