In our last post, we detailed existing Illinois laws regarding drug and alcohol testing. We’re back to explore how the new 4-year medical marijuana pilot program could affect your drug-free workplace policies.
Medical Marijuana in Illinois
Beginning January 1, 2014, Illinois will begin a four (4) year pilot program for dispensing and using medical marijuana. Individuals may obtain medical marijuana if they are diagnosed with one of the debilitating medical conditions listed in the statute and they register with the Illinois Department of Public Health (as a “registered qualifying patient”).
Under the Act, an employer may not discriminate against an individual “solely for his or her status as a registered qualifying patient”. An employer may not hire, terminate or take any other adverse action against an employee simply because that individual has access to medical marijuana. An exception is allowed if the failure to discipline the individual would cause the employer to lose monetary or licensing related benefits under federal law.
- Employers may continue to enforce zero tolerance, drug free and drug testing policies. A registered qualifying patient (RQP) may be disciplined for violating a workplace drug policy. However, an employer must perform an investigation before disciplining a RQP for being impaired at work. The RQP must have shown “specific, articulable symptoms while working that decrease or lessen his or her performance of the duties or tasks of the employee’s job position.”.
- The RQP is entitled to contest the employer’s determination of impairment. Under the Act, an employer may discipline any employee for failing a drug test, if the failure to pass the test would put the employer in violation of federal law or cause the employer to lose funding.
- The Act does not create a cause of action against an employer for any action based on a good faith belief that a RQP used or possessed marijuana while on the employer’s premises or during hours of employment.
- The Act however, does not address whether an employer may discipline an RQP who is not impaired at work or during hours of employment for failing to test negative on a drug test.
As a matter of course, an employees’ status as an RQP should never be disclosed by the employer to others.
How Will Medical Marijuana Affect Drug-Free Workplace Policies?
There are still a lot of unknowns regarding how this new law will affect employers and drug testing policies. For instance, will this new law require an adjustment to sick leave policies? Additionally, there is no methodology that accurately measure the level of impairment, such as there is with alcohol. What about an RQP who performs secretarial functions versus an RQP who works with heavy machinery?
As to an employers right to fire an employee who uses medical marijuana, courts in other states where medical marijuana is legal, have upheld the right of the employer to fire such an employee.
In Coats v Dish Network, L.L.C., the Colorado court of appeals upheld an employers right to terminate an employee who had a prescription for medical marijuana. There, the plaintiff was fired after he tested positive for marijuana, which was a violation of the defendant’s drug policy. The court upheld the firing, relying in large part, that drug use was still illegal under federal law. The court held that for an activity to be “lawful” in Colorado, it had to “be permitted by, and not contrary to, both state and federal law. Conversely, an activity that violated federal law but complies with state law, cannot be ‘lawful’ under the ordinary meaning of that term.” The court found no legislative intent to extend employment protection to those engaged in activities which violate federal law.
In a similar fact situation arising out of a case in Washington state, the state supreme court upheld the firing of an employee with a valid medical marijuana prescription on the basis that the medical marijuana law provided an affirmative defense against criminal or civil prosecution, but did not provide private causes of actions by employees against employers.
How the Illinois courts will handle this particular issue is unknown at this juncture.
What is ARCpoint Labs?
ARCpoint Labs provides accurate, reliable and confidential drug testing. ARCpoint is a national provider of drug & alcohol testing services and is affiliated with both DATIA (Drug & Alcohol Testing Industry Association) and SAPAA (Substance Abuse Program Administrators Association). The company has developed a comprehensive program incorporating the many aspects of federally mandated and non-mandated drug testing.
All ARCpoint Labs technicians are certified and trained in accordance with 49 CFR Part 40(Part 40), procedures for Transportation Workplace Drug and Alcohol Testing Programs. The federal requirements of Part 40 ensure best collection practices and establish standards for training both urine collection and breath alcohol technicians within the industry.
What Separates ARCpoint Labs
ARCpoint Labs is certified by DATIA and all of our lab technicians carry the distinction of Certified Professional Collectors
We utilize only the highest quality, most advanced drug screening devices on the market to insure accuracy and reliability
We carry errors and omissions insurance, not carried by most third party providers, specifically for drug and alcohol testing that is for your protection.
Why Use ARCpoint Labs?
There is no easy answer as to what is the best method to use for drug testing. Which method is best depends upon the facts of each case.
As attorneys, we understand the evidentiary issues that can arise in a contested case and will take all steps necessary to insure that the collection process is not tainted. We can also meet with attorneys (and judges) to determine the best testing method(s) to use, based upon the facts of each case.
As a locally owned and operated collection facility, our focus is to provide quality service and to assure our clients that the strictest protocols and procedures are followed to insure accuracy of results.
To learn more about how ARCpoint Labs of Elk Grove Village can help with your drug and alcohol testing, call us today at (847) 264-4677.
About the Author
Lesly Datlow, one of the owners/operators of the ARCpoint Labs located in various locations throughout the Chicagoland area, has been an attorney since 1987. Her primary area of practice is domestic relations and appellate law. Ms. Datlow has also been a member of the Illinois State Bar Association and Chicago Bar Association since becoming licensed to practice law.