Ill. medical marijuana law poses workplace dilemma

Illinois residents who make use of the state's fledgling medical marijuana law may risk their jobs if their employers opt to maintain or adopt zero-tolerance drug policies.

The law that took effect in January protects patients from arrest or prosecution for using marijuana, the Rockford Register Star reported. But employees might not have recourse if their employers fire them for violating on-the-job prohibitions on use of the drug.

It's not immediately clear how many patients' jobs could be affected. But experts say it may be time for employers to revisit or tweak their drug policies to reflect the new law — and for workers to research their workplace drug protocol.

“If an employer already has a drug policy, there's nothing in the act that prevents them from enforcing that drug policy,” said Nesheba Kittling, a Chicago-based attorney who specializes in labor matters. “We'll get people who have a smaller workforce who envision someone having cancer and using medical marijuana to help with the cancer. They wonder, 'Do I really have to terminate them?' At the end of the day, it's up to you.”

Kittling said case law in states such as California, Oregon and Washington, places with less-restrictive medical marijuana laws than Illinois, have sided with employers when employees sue over discipline involving medical marijuana.

Illinois' law does protect employees from disciplinary action just for having or saying they have a medical marijuana card. But Kittling said employer drug policies run the gamut of what they allow, with companies with government contracts more likely to have zero-tolerance policies because such policies are mandated by the federal government.

Illinois' law lists about 40 conditions, including cancer to HIV, AIDS, glaucoma, multiple sclerosis, rheumatoid arthritis and muscular dystrophy, that would qualify patients to get recommendations from their doctors to use medical marijuana.

Rep. Lou Lang, the Skokie Democrat who sponsored the medical marijuana bill, told the newspaper that questions about whether employer restrictions will limit the number of patients who can use medical marijuana are fair, though he believes the law's language is clear.

“Whatever rules employers have at their workplace can stay in place,” Lang said. “We were very specific that if you have a drug-free workplace, it can remain drug-free.”

Lang said the law's language is similar to wording in other states' medical marijuana statutes, and that adding language that would have regulated employer responsibilities with regard to medical marijuana would have stalled the bill's passage.

“There may be adjustments that should be made along the way, but we won't know until we get some experience with this, until the program is up and running and people who need the product are taking it,” Lang said.