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Can I Be Fired for Using Medical Marijuana?

In 2013, Illinois passed the Compassionate Use of Medical Cannabis Pilot Program Act (The Compassionate Use Act) to allow patients with select health conditions to possess and use marijuana. The Compassionate Use Act will be in place until late 2017, at which point state lawmakers will expand or cut the program.

Some of the qualifying health conditions include cancer, ALS, Crohn’s disease, Lupus, HIV/AIDS and Parkinson’s disease. Patients who suffer from one of the 35 qualifying conditions can buy and possess two and a half ounces of marijuana every two weeks. Only a few thousand patients are currently participating in the program.

However, this program has created confusion for businesses and employees. Some are unsure of how the new law will affect their employment status or businesses.

The Compassionate Use Act does not allow employers to discriminate against employees who are registered to receive medical marijuana, but it does mean they can still fire workers for using the substance. Make sense? The law differentiates between being prescribed marijuana and actually using marijuana. In other words, the law is less than perfect.

While these patients can participate in Illinois’ medical marijuana program, it does not mean they should. The federal government defines marijuana as a Schedule I substance, along with drugs like cocaine and heroin. Even though medical marijuana is legal under Illinois state law, it means patients or employers can still run afoul of federal laws and regulations. This is especially true if an employer receives money from the federal government or uses government property. Employers can still fire workers for using medical marijuana.

Furthermore, the Compassionate Use Act still allows employers to enforce drug-free workplaces and zero tolerance policies for positive drug tests.

Why Would Employers Fire Workers for Medical Marijuana?

Many employers are afraid they will be held liable for workers who use medical marijuana. For example, if a worker who uses medical marijuana were to get into an accident, it may affect insurance or workers’ comp payouts.

One of the problems patients will run into with marijuana is that it binds to fat cells, meaning it can be detected by drug tests weeks after the effects are gone. Medical marijuana patients who are responsible for accidents can be drug tested and fired even if they are not presently under its effects.

Is There Recourse After an Employee is Fired for Using Medical Marijuana?

Employees in all medical marijuana states are likely to face similar circumstances. As helpful as marijuana may be for some health conditions, employees can still lose everything for using the substance.

Several court cases have favored employers over workers in various other medical marijuana states. In 2008, the California Supreme Court ruled workers could be fired for using medical marijuana outside of work. The fired employee had filed the suit in California, claiming wrongful termination. Last year, the Colorado Supreme Court ruled employers could fire medical marijuana patients for off-duty use. By the way, the Colorado case ruled against a quadriplegic who had argued disability discrimination.

Seeing the trend? Courts are arguing that because marijuana is a federally illegal substance, there cannot be an ‘lawful use’ of the substance. In addition, courts are siding with employers who have drug-free workplace policies in place. For marijuana use to be lawful, it would have to be legal under both state and federal laws. Unfortunately for medical marijuana patients, that’s not the case at this time.

The employment law attorneys at MacDonald, Lee & Senechalle, Ltd are dedicated to helping employees who have faced wrongful termination, workplace harassment and discrimination. We have offices in Hoffman Estates and Des Plaines, serving the greater Chicagoland area.

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