Prospect of workers on marijuana concerns employers

     Even as the rules are drafted for use of medical marijuana, bosses around Illinois are asking themselves how to handle the situation in the workplace.
    The quick answer: Address it now.
    “It’s not something that’s impactful today, but by fall or winter of 2014 it’s going to be an issue that you need to be thinking about,” attorney Todd Sivia told a group recently at Southern Illinois University Edwardsville.
    The best move is to spell out particulars in workplace policies, he told those attending a summit on new laws in Illinois, part of an event sponsored by the Illinois Small Business Development Center at SIUE.
    In general, the Compassionate Use of Medical Cannabis Pilot Program Act will allow people 18 and older to use marijuana for debilitating medical conditions, but no more than 2.5 ounces in a two-week period and only through a prescription from a duly licensed physician with whom the patient has an established relationship. Individuals with prior felonies are prohibited. Use will be banned in public, in vehicles and near schools, among other places. Illinois’ regulations are said to be among the most restrictive in the nation.
    The four-year pilot program is expected to go online late this year after state agencies complete drawing up regulations and enlisting extensive public input.
    The rub for businessmen is the unknown quantity of having a potentially protected class of workers, using a drug that would otherwise violate state and federal laws.
    The situation is similar to workers who are on other kinds of prescription drugs, Sivia said, noting that employers would not let a worker operate, say, heavy equipment, if that worker is known to be on medications that could impair judgment or response.
    “Do they need to be driving a vehicle or be switched to a desk job? You want something that is not going to put the employer at risk or the employee as well,” he said.
    Employers can prohibit employees from using medical marijuana as a part of their work arrangement, but only through a detailed drug policy that includes random drug testing.
    Sivia offered a couple of scenarios, both involving workers who experience a decline in productivity. In the case of a worker not known to be a registered marijuana user, the employee has more options, including talking to the worker, having them undergo a drug test, noting the lapse in their file or perhaps dismissing them.
    However, action against a worker with a known illness is a little more sensitive.
    “The act does not forbid employers from instituting a drug-free workplace, provided it is applied in a nondiscriminatory manner,” he said. Employers may discipline or fire employees who fail a drug test if an employee is impaired and in violation of written drug policies, or if they have a federal contract, he said.
    Some members of the audience pointed out that they have a policy requiring employees to report use of prescription drugs as a matter of course, which Sivia said is good policy.
    Workers with a valid marijuana ID will fall under the Americans With Disabilities Act because of their illness.
    “You (as employers) have to give them reasonable accommodations for using it. You have to work out those issues with the employees. You can say, ‘I’m not going to allow you to be stoned at the time you are reporting for work.’ That might be the caveat. You need to have a sit down meeting with your employees.
    “Does an employee have to notify his employer of the circumstances? Generally, no. But the more the two sides communicate the better the outcome for each.
    Businesses will also have to consider the potential ramification of customers and vendors who will soon have access to medical pot.
    Unions and union contracts also could become an issue, he pointed out.
    Sivia recommended that employers review their policy with an internal or external attorney.
    “Litigation will come,” he quipped, nothing that some of the law will be tested in court.
    If a business has a policy that addresses the use of marijuana and requires notification, and the employee fails to notify the employer of his circumstances, the employer is likely within his right to mete out discipline. However, before he does he should get some legal advice, Sivia said.
    “It is always better to be thinking proactively, then to be reactive when the sheriff is dropping off the lawsuit papers at the business’ door,” he said.
    The state is posting all draft administrative rules at mcpp.illinois.gov.