CBA RECORD
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I
LLINOIS’ RIGHT TO PRIVACY IN THE WORKPLACE ACT,
on the other hand, generally prohibits an employer from
refusing to hire or discharging any employee because “the
individual uses lawful products off the premises of the employer
during nonworking hours.” 820 ILCS 55/5(a) (emphasis added).
Further complicating matters, marijuana – whether recreational
or medical – is still illegal under federal law. Thus, employers
face a rather perplexing question: whether an employee, who is
a registered MCPP patient, can be discharged for violating an
employer’s drug free or zero-tolerance policy, when the employee
never possessed medical marijuana at work, never was under the
influence of medical marijuana at work, and only used medical
marijuana in his or her own home outside working hours.
T
his very question was answered in the affirmative under both
Oregon and Colorado law in
Emerald Steel Fabricators, Inc. v.
Bureau of Labor & Indus.,
230 P.3d 518 (Ore. 2010) and
Coats v.
Dish Network, LLC,
303 P.3d 147 (Colo. App. 2013).
In Emerald Steel Fabricators, Inc., the employee, a temporary drill
press operator, used medical marijuana to alleviate severe anxiety,
panic attacks, nausea, vomiting, and stomach cramps. During the
course of his temporary employment, he used medical marijuana one
to three times per day, but never at work. The employer considered
hiring the employee full time, but, instead, discharged the employee
after the employee told his supervisor that he had a registry identi-
fication card and that he used marijuana for medical purposes.
Following his discharge, the employee filed a complaint with
the Bureau of Labor and Industries alleging that the employer
had discriminated against him in violation of ORS 659A.112
which prohibits discrimination because of a disability and requires
that employers make reasonable accommodations for a person’s
disability unless doing so would impose an undue hardship on
the employer. The Administrative Law Judge ultimately ruled
that the employer violated portions of the statute. The employer
appealed, arguing that the statute does not apply to persons using
state-licensed medical marijuana.
The Court of Appeals did not reach the merits of the employer’s
argument and, thus, the matter went up to the Oregon Supreme
Court, which ultimately held that employers are not required to
accommodate their employees’ use of medical marijuana. Accord-
ing to the Oregon Supreme Court, to the extent Oregon Medical
Marijuana Act affirmatively authorizes the use of medical mari-
juana, the federal Controlled Substances Act expressly prohibits
it. Further, since the employee was engaged in the illegal use of
drugs under federal law and was discharged for that reason, the
protections of ORS 659A.112 did not apply.
Similarly, in
Coats,
the employee, a telephone customer service
representative, was a quadriplegic and never used and was never
under the influence of marijuana at work. Still, the employee was
fired after he tested positive for marijuana, which violated the
employer’s drug policy. The employee sued the employer under
Colorado’s Lawful Activities Statute which prohibits an employer
from discharging an employee for “engaging in any lawful activ-
ity off the premises of the employer during non-working hours.”
The trial court dismissed the complaint and the Appellate Court
affirmed. According to the Appellate Court, because the employee’s
state-licensed medical marijuana use, at the time of his termination,
was subject to and prohibited by federal law, it was not “lawful
activity.” The
Coats
case is currently on appeal to the Colorado
Supreme Court, where is has been fully briefed and argued, and
a decision is expected any day now.
Unemployment Benefits
A somewhat different result was reached by the Michigan Appellate
Court in
Braska v. Challenge Mfg. Co,
2014 Mich. App. LEXIS
2112 (Mich. App. 2014). There, the employee, a material handler/
hi-lo operator, injured his ankle on the job and was sent to the
medical center where he was required to take a mandatory drug
test. He tested positive for marijuana and disclosed, for the first
time, that he had obtained a medical marijuana card earlier that
year and regularly use state-licensed medical marijuana for his
chronic back pain. Shortly thereafter, the employee was terminated
for violating the company’s drug-free workplace policy. There was
In 2013, Illinois became the 21st state to adopt a medical marijuana law, the
Compassionate Use of Medical Cannabis Pilot Program (“MCPP”). The new law
will require employers to revisit or rethink zero tolerance or drug-free workplace
policies. The MCPP does not prohibit an employer from, among other things,
(1) adopting reasonable regulations concerning the consumption, storage, or
timekeeping requirements for patients related to the use of medical cannabis;
(2) enforcing a policy concerning drug testing, zero-tolerance, or a drug free
work place provided the policy is applied in a non-discriminatory manner; or (3)
disciplining an employee 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 fund-
ing. 410 ILCS 130/50 (a), (b), and (d).