PI Original Ellyn Fortino Friday November 1st, 2013, 4:58pm

Medical Marijuana Law Creates A 'Gray Area' For Both Employers And Employees In The Workplace

It's still a little hazy as to how Illinois' new medical marijuana law, set to take effect in January, will play out in the workplace, experts say. Progress Illinois takes a look at the issue.

It's still a little hazy as to how Illinois' new medical marijuana law, set to take effect in January, will play out in the workplace, experts say.

Under the measure, qualified and registered medical marijuana patients cannot be discriminated against by employers in the workplace or during the application or promotion process solely based on their medical status.

But employers, like those with drug-free workplaces and drug-testing programs, can discipline a worker for failing a drug test "if failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or funding."

"It's really a lot of gray area," said Dan Linn, executive director of the Illinois chapter of the National Organization for the Reform of Marijuana Laws (NORML). "To me, it seems like they wrote the language to appease both sides; but that language is actually conflicting if you hold them side by side."

Zev Eigen, associate professor of law at the Northwestern University School of Law, said he's noticed a lot of inconsistency in the advice being doled out by employment law firms to their clients about the medical marijuana measure. That's because Illinois' Compassionate Use of Medical Cannabis Pilot Program Act, as it is written, is just too broad, he said.

"I feel like employers need more clarity on the parameters on how they're supposed to treat employees using medicinal marijuana under this act," he stressed.

Those concerned about the confusing and conflicting employment-related provisions in the law say they hope at least some of the lingering issues will be cleared up once the regulations are issued. Officials from various Illinois agencies are currently working on draft medical marijuana rules, which are expected to be presented to state lawmakers in May.

Back in August, Gov. Pat Quinn signed the Compassionate Use of Medical Cannabis Pilot Program Act, said to be the one of the toughest medical marijuana bills in the country. It sets up a four-year trial period during which medical marijuana can be prescribed to people with specific debilitating medical conditions, such as cancer, multiple sclerosis and HIV/AIDS.

Qualified patients can receive up to 2.5 ounces of marijuana every two weeks with a doctor's prescription. The prescription would need approval from the Illinois Department of Public Health before it's filled.

There will be 60 dispensing centers and 22 marijuana cultivation centers across Illinois, which would be regulated by the Illinois Department of Agriculture, Department of Health, and Department of Financial and Professional Regulation. A background check would be required for patients, growers and sellers.

Eigen said the whole issue of medical marijuana and the workplace essentially boils down to a balancing act between an employer's right to have a functioning workplace and the employee's rights to receive medical care.

Bob Bruno, director of the University of Illinois at Chicago's Labor Education Program, explained that in a unionized setting, employers would likely have to negotiate with the union to level out the interests of the employer with the rights of the individual.

Bruno also said some reasonable level of accommodation should be expected in the workplace for medical marijuana patients, depending on whether or not they need it.

"You have to be able to perform your job. But just like somebody who might have an injury but is still physically able to do some work, you might change their work assignment from some sort of heavy load to light work," he explained.

Dan Reid, CEO of the Thomas Jefferson Project, a patient advocacy organization working on medical marijuana issues nationally and in Illinois, agreed.

"Enlightened employers ought to be thinking to themselves, 'How can we accommodate these people,'" he said. "What’s the difference between that and putting in a ramp for people [with disabilities as required by the Americans with Disabilities Act]? What’s the difference between making accommodations for them to be medicated? What’s the difference between that and a woman who may need to breast feed or breast pump at the workplace?"

Reid stressed that patients should be able to use medical marijuana as prescribed as they would any other drug, and they should be exempt from workplace drug policies.

“I think it's important that we try to remain cognizant that this is a medication," Reid stressed. "It is being used for legitimate medical purposes, and it is really, really helping these people with functioning, productive, and happy lives.”

Eigen offered his take on how this could shake out if a medical marijuana patient is in fact fired for failing a drug test.

If the employee takes the employer to court, the courts would probably look first a the job the worker was performing, he explained. It would likely be much harder for an employer to fire a medical marijuana patient who failed a drug test while doing adequate work without a public safety risk, like a computer programmer. On the other hand, an employer would have a strong case for firing a patient who failed a drug test and works as a school bus driver, he said.

Overall, Linn said the rules and regulations need to include firm language that protects qualified medical marijuana patients who test positive on drug tests from being fired or punished from their job as long as they aren't violating any other laws. Most drug tests, he said, only screen for the presence of a drug or substance in the body. And marijuana takes a lot longer to pass through the body compared to alcohol and other drugs like cocaine and heroin, he explained.

"Cannabis stays in the system for weeks, sometimes up to a couple of months depending on the person’s body fat content," he stressed. "You can see a lot of people test positive for cannabis even if they haven’t used it in the past 24 hours or the past week or two weeks."

As such, he said employers who have drug-testing policies are likely ill-prepared for this new law.

That's because most companies with drug-testing programs outsource the work to drug-testing firms, which for the most part, according to Linn, find marijuana in the systems of those who test positive due to the drug's longer life cycle in the body.

Linn also made a point to stress that the majority of the patients who will register with the state as part of the pilot program are already out of the workforce due to their medical condition. The few that are able to hold a job have done so without medical marijuana being legal. They could run into a problem, however, if their place of work adopts a new drug testing policy, he said.

"Most patients that are using cannabis illegally right now, they got their job without having to take a drug test," he said. "[If their employer] looks to pass a new policy of drug testing, they may catch some of these patients who are going to be enrolling in this program in the next year or two."

As it is currently written, the law also allows an employer to discipline a qualified medical marijuana patient if the worker is "impaired" by the drug on the job. The employer can only do so, however, if it affords "the employee a reasonable opportunity to contest the basis of the determination."

But what such "reasonable opportunity" would look like is unclear, Eigen explained.

"I don't think it's clear from the bill what the scope of that entails," he said. "It could be as broad as a legal challenge. It could be as narrow as contesting it internally with the employer."

Linn wants the law to explicitly state that medical marijuana patients can only be punished if there is impairment first, and then a positive test for the drug second.

"I would like that language really spelled out [in terms of] what that impairment or perceived impairment is," he stressed. "Because you show up to your job at six o'clock in the morning and you look tired, that shouldn’t be justification for, 'Oh this person looks stoned. Their eyes are half-open. Now they need to submit to a drug test.'"

Eigen acknowledged that there is a risk that the impairment issue could be used by employers "as a proxy for discrimination."

"In other words, you see someone show up, and they're tired, and you want to fire them, and you use this as an excuse," he explained. "However you had that excuse before this bill existed. If an employer wants to fire someone, and that person shows up tired or they look like they're impaired, that was the status quo before this bill."

But the law is helpful for employers with good intentions, Eigen said.

"This gives you an ability to treat that employee with lupus or whatever preferentially without having a problem running afoul of the law and treating employees differently," he said.

Norma Zeitler, a partner who focuses on employment law in the Chicago office of Barnes & Thornburg LLP, said she anticipates the impairment issue will be a large area of concern.

"Determining whether someone is impaired in the workplace is going to depend upon supervisor and manager judgement," she said. "I suspect that’s going to be an area where both the statute and the regulations aren’t going to give either side much guidance."

Image: AP/Ted S. Warren

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