Medical Marijuana Raises Questions for Businesses

If Illinois Gov. Pat Quinn signs recently passed legislation legalizing medical marijuana, some say it will raise serious questions on everything from the hiring and firing of job applicants to the use of a federally controlled and illegal substance in hospitals, nursing homes and hospices.

The legislation allows Illinois patients who already have a relationship with a doctor to be prescribed a limited amount from a state-run dispensary. It provides a list of more than 30 serious illnesses for which marijuana can be prescribed.

Advocates say marijuana offers pain relief without the side effects of prescription medications. Opponents fear it could open the door to increased drug use.

If Illinois becomes the 19th state to legalize medical marijuana – Quinn hasn’t said whether he will sign the legislation – some say there could be legal issues related to hiring and firing workers who test positive for the drug or show up to work while they’re impaired.

“It doesn’t allow the Illinois business community to continue what it’s doing today,” Peter Bensinger, former head of the Drug Enforcement Administration, told Crain’s Chicago Business. “You’re going to have litigation, and you’re going to have accidents” at workplaces.

However, the bill’s sponsor, Rep. Lou Lang, D-Skokie, says the proposed law should have “minimal impact” on employers.

“If they have a zero-tolerance drug policy, this doesn’t change that,” Lang said. “They can make any rules they wish. It would be the same rules they have now relative to other medications employees take.”

Seth Brickman is a management liability manager at Windsor, Conn.-based Business Risk Partners Inc., an insurance underwriter for employment practices liability and other specialty insurance. He says the burgeoning number of states allowing marijuana use for medical purposes and created “emerging and pervasive underwriting concern.”

“When does it become grounds for wrongful termination or an (Americans With Disabilities Act) claim?” he said. “It will come down to how well individual state laws are written and how the federal government enforces” its drug laws.

Illinois’ legislation says companies can’t discriminate against employees simply because they are registered to use medical marijuana. The employer can discipline a worker who fails a drug test “if failing to do so would cause the employer to violate federal law or lose a federal contract.”

The bill also allows employers to discipline registered marijuana patients if they show up to work “impaired” by marijuana. However, the company must offer a “reasonable opportunity” for the employee to contest that determination.

“For employers, this is going to be a problem,” says Bensinger, whose Chicago-based consulting firm manages drug-testing and employee assistance programs. “How can you prove impairment? Historically, by drug tests.”

Bensinger and others say that provision and other parts of the bill would require additional management training and employee communications to make it clear that having a permit for medical marijuana is not a defense against testing positive or a finding of impairment.

While the legislation prohibits use of medical marijuana in “public places,” that definition excludes hospitals and other health care institutions where marijuana use, other than smoking, will be allowed.

“We’re still looking at the bill to see what the implications are and how it applies to hospitals,” an Illinois Hospital Association spokesman says.