Pubdate: Sun, 27 Oct 2013
Source: Chicago Tribune (IL)
Copyright: 2013 Chicago Tribune Company
Author: Ameet Sachdev
Page: Business 1


Illinois Firms Struggle to Reconcile Drug Policies, Medical Marijuana

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

"I'm still seeing a lot of confusion over the law," said Tom Posey, an
employment-law attorney at Faegre Baker Daniels in Chicago who
represents businesses. "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 Miller-Coors' 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 the 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, can be detected in
the body for weeks. 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. "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

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

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 lawis 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.
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