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Medical marijuana law may open up can of worms for Illinois employers

   If Gov. Pat Quinn signs the Compassionate Use of Medical Cannabis Pilot Program Act into law, Illinois will become the 19th state to legalize pot for medical use. Along with that will come numerous complications and problems for Illinois employers, according to local attorneys.
   The 200-plus-page bill, passed by the Illinois General Assembly in May, includes lots of regulations regarding who can manufacture marijuana, how much a person is allowed to possess, who can dispense it and how it can be dispensed, along with a list of about 30 specific illnesses for which it can be prescribed. According to Thomas E. Berry Jr., a shareholder with the law firm of Sandberg Phoenix and von Gontard P.C., it also creates multiple conflicts with existing law.
   “Unfortunately, for employers it creates nothing but uncertainty,” Berry said.
   One of the principal problems, according to Berry, is that Illinois – like a number of other states  – has an existing law making it unlawful for an employer to refuse to hire or to terminate an employee because the individual uses a lawful product away from work.
   “That was passed primarily to protect smokers and – to a lesser extent – drinkers,” Berry said. “It didn’t make it illegal for an employer to say you can’t drink or smoke at work, but it did make it illegal for employers to refuse to hire smokers or to refuse to hire drinkers. So now the first question is: Someone who is smoking marijuana because they’ve been given approval by their doctor and then you fire them for failing a drug test, are you firing them for the lawful use of a product?”
   According to William Schmitt, a shareholder with the law firm of Greensfelder, Hemker & Gale P.C., the act will prohibit an employer from discriminating against an employee because he or she has been medically prescribed the use of marijuana.
   “In other words,” Schmitt said, “such an employee cannot be fired or otherwise disciplined because he or she has been prescribed the use of marijuana. We believe that would also prohibit an employer from refusing to hire someone who has been prescribed marijuana on a medical basis.”
   In addition to conflicts with other state laws, the act would also conflict with federal law which does not recognize marijuana for medical use. This conflict has arisen multiple  times since California became the first state to legalize medical pot in 1996, according to Berry. And, he says, the courts have been consistent in upholding federal law. But, he continues, those decisions are not binding on Illinois courts.
   Berry cites a recent court battle in Michigan in which a Wal-Mart employee used medical marijuana to control the pain caused by inoperable brain cancer. The employee failed the drug test and the company fired him. There was no evidence that he was high at work. There was no evidence to refute his contention that he only used it at home the night before the test. He argued that he was protected because he was using marijuana prescribed under Michigan law. The court found that federal law trumped state law and Walmart was upheld in its termination. According to Berry, other courts in other states have ruled the same way.
   Schmitt says that under the new law, an employer will still be able to discipline an employee who is impaired at work, possesses or uses marijuana while on the job or fails a drug test, if failing the test would be a violation of federal law or cost the employer federal funding.
   “There are two ways for determining whether an employee is under the influence at work,” Schmitt said. “One is by use of a drug test, but many employers do not utilize drug tests. Or, if the employer does not use a drug test, he must come to the conclusion that the employee was ‘impaired.’ The new law states that the impairment which the employer observes must be specific and relate to such things as speech, dexterity, coordination or behavior. In addition, the new law requires that there must be a reasonable opportunity for the employee to contest a determination that he or she was impaired,” Schmitt added.
   But “impairment” can be a hard thing to prove, according to Berry. He cites a study involving airline pilots. The pilots were tested in a flight simulator to establish their baseline competency. They were then broken into two groups. One was given real marijuana – the other, a placebo. They were put back into the flight simulator and their performance was tracked again. The pilots were asked whether or not they felt intoxicated during the simulation. The placebo group correctly identified themselves as being sober. The test group also correctly identified themselves as being intoxicated. But what was interesting, Berry says, was that four hours later, the participants in the test group thought they were now sober but their actual performance in the simulator didn’t return back to their baseline until nearly 48 hours later.
   However, aside from a clinical test such as the study of the airline pilots, Berry says, there is no test to determine whether or not someone is high. When someone fails a drug test, he says, all that means – in the case of marijuana use – is that he has metabolites in his system. Unlike alcohol, which can be measured in the bloodstream and dissipates fairly quickly, a drug test can only determine that the subject smoked marijuana within the past 30 days. It could have been 30 minutes before the test or it could have been 30 days before the testing, Berry says.
   “Another open question,” said Berry, “is what happens if you have an employee who is driving. They’re in an accident. They rear-end somebody. And, post-accident, they test positive for marijuana. That doesn’t mean they were high when they got in the accident. But, how is the jury going to handle that when the employer is being sued because his employee rear-ended somebody and that employee tested positive for marijuana? You have to try to prove a negative (i.e., the individual wasn’t high), when it’s legally impossible to prove that negative. I always tell people I would rather defend firing someone after a drug test than not firing him and then he’s being sued because of a car accident. If I’ve got to pick my lawsuit, I’d pick that one.”
   Illinois Senator Bill Haine (D-Alton) was a sponsor of the bill. Haine says he does not believe the act will create problems for employers; but he says if attorneys or employer groups feel that further clarification is needed, he’s willing to bring an amendment to the legislature.
   “My intent is to give employers the right to have a competent employee who is in possession of all of his or her faculties,” Haine said. “And this is true of regular prescription drugs as well as medical marijuana, so I don’t see the problem. If there’s a specific issue they have, by all means give me a bill to introduce.”
   Meanwhile, Schmitt offers a cautionary note.
   “We do not yet know the full scope and impact the new law may have in the areas of wrongful termination and other laws which protect employees, such as the Americans with Disabilities Act,” Schmitt said. “Employers should be encouraged to consult with employment and labor law counsel as these issues arise.”

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