by John E. Motylinski (Winter 2017)

This past November, voters from across the nation overwhelmingly approved voter measures lessening restrictions on marijuana. California, Massachusetts, Maine, and Nevada all voted to legalize the recreational use of pot, while North Dakota, Arkansas and Montana approved or expanded medical marijuana laws. Consequently, there are now twenty-eight (28) states that have enacted medical marijuana provisions, including Illinois.

But does the Illinois’ medical marijuana program require employers   to accommodate cannabis-using employees? The answer is a resounding no; Illinois employers – especially those in fire, EMS, and other safety-critical environments – are not on board. Indeed, employees working in these sectors can be (and are being) terminated for positive drug tests even when using marijuana in conformity with Illinois’ medical marijuana program.

There are five major driving forces animating fire and EMS employers’ anti-marijuana sentiments, which are detailed below. First and foremost, being an emergency responder is an awesome responsibility that requires a sober mind in the face of emergency. As such, prudence and common sense require that emergency responders be free of the influence of any inhibiting drug, even those prescribed by a doctor. Therefore, it is no surprise that public safety employers continue to adhere to strict anti-drug policies.

Second, employer resistance to marijuana (even when legally permitted) is actually supported by the Compassionate Use of Medical Cannabis Pilot Program Act. While the Act prohibits discrimination against approved individuals approved to use medical marijuana, the law leaves open a loophole allowing employers to administer drug tests and to fire employees who fail them. Moreover, the Act expressly allows employers to enforce drug-free workplace policies and discipline employees who break them. And, at present, employers do not hesitate to do so.

Third, many fire departments are public agencies that receive federal funding. Even though marijuana is legal for qualified individuals at the state level, pot remains illegal under federal law as a Schedule I controlled substance. Just as individuals with criminal marijuana convictions may lose federal financial aid and housing opportunities, public safety employers are fearful that their federal funding may be discontinued if they appease marijuana users.

Fourth, there are several issues relating to workers’ compensation that are dissuading employers from embracing employee use of marijuana. Many argue that marijuana use, particularly in safety-sensitive industries, may lead to an increased number of on-the-job accidents. This, in turn, may increase an employer’s workers’ compensation insurance rate. Further, workers’ compensation will often not cover on-the-job accidents where the injured employee tests positive for marijuana. This is because the Illinois Workers’ Compensation Act provides that no compensation will be paid where intoxication contributes to the injury, and a positive finding of any amount of marijuana can establish a presumption that the individual was intoxicated. Therefore, employers are not keen on marijuana use, even where it is legalized, because of the potentially adverse consequences on their workers’ compensation premiums.

Fifth, fear of legal liability may also be motivating employer anti-pot sentiments. While local governments (including many fire protection districts and municipal fire departments) enjoy immunities from negligence lawsuits, the Illinois Supreme Court recently stripped a layer of court-created protections in Coleman v. East Joliet Fire Protection District, 2016 IL 117952. This means that plaintiffs now have fewer hurdles to jump in suing these employers. Furthermore, a positive finding of marijuana in an employee’s system may even further enhance the prospects of a lawsuit. For this reason, embracing employee marijuana use remains a non-starter for public safety employers.

Even though the nation’s attitude on marijuana has become less restrictive, there are many reasons that employers – especially safety-sensitive employers -continue to demand drug-free workplaces. Although it is doubtful that employees in emergency responder roles will see relaxed marijuana policies any time soon, this area is clearly in flux and ripe for change. Accordingly, please contact your attorneys if you encounter any questions or concerns regarding your standing drug policies, drug testing, or issues with employee use of marijuana.