A PRIMER ON MEDICAL CANNABIS AND PUBLIC EMPLOYERS

Transcription

1 A PRIMER ON MEDICAL CANNABIS AND PUBLIC EMPLOYERS Presented and Prepared by: Stacy E. Crabtree Peoria, Illinois Nathan R. Bach Peoria, Illinois Heyl, Royster, Voelker & Allen, P.C. PEORIA CHICAGO EDWARDSVILLE ROCKFORD SPRINGFIELD URBANA 2016 Heyl, Royster, Voelker & Allen, P.C. H-1

2 A PRIMER ON MEDICAL CANNABIS AND PUBLIC EMPLOYERS I. THE COMPASSIONATE USE ACT... H-3 II. COURT DECISIONS... H-4 A. Drug Testing Policies... H-5 B. Americans with Disabilities Act... H-6 C. Right to Privacy in the Workplace Act... H-6 III. IMPLICATIONS FOR PUBLIC EMPLOYERS... H-7 IV. CONCLUSION... H-8 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. H-2

3 A PRIMER ON MEDICAL CANNABIS AND PUBLIC EMPLOYERS The State of Illinois is in its first year of medical cannabis sales pursuant to Illinois law, despite cannabis s continued illegal status under federal law. The conflict between state and federal law requires employers to give special consideration as to how to handle this particular medicine in the workplace. Public employers are exposed to wrongful termination claims, labor union contract violations, and potentially even the loss of federal funding if not handled appropriately. This article will evaluate the language of the Illinois law, the Compassionate Use of Medical Cannabis Pilot Program Act, 410 ILCS 130/1 et seq. (the Compassionate Use Act) as it relates to employers, recent developments in employment case law related to cannabis, and special implications for public employers. I. THE COMPASSIONATE USE ACT The Compassionate Use Act makes legal the purchase and possession of cannabis for medicinal use by registered qualifying patients. 410 ILCS 130/25. A qualifying patient is defined as a person who has been diagnosed by a physician as having a debilitating medical condition. 410 ILCS 130/10(t). A debilitating medical condition is defined within the statute as one of the following: cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn's disease, agitation of Alzheimer's disease, cachexia/wasting syndrome, muscular dystrophy, severe fibromyalgia, spinal cord disease, including but not limited to arachnoiditis, Tarlov cysts, hydromyelia, syringomyelia, Rheumatoid arthritis, fibrous dysplasia, spinal cord injury, traumatic brain injury and post-concussion syndrome, Multiple Sclerosis, Arnold-Chiari malformation and Syringomyelia, Spinocerebellar Ataxia (SCA), Parkinson's, Tourette's, Myoclonus, Dystonia, Reflex Sympathetic Dystrophy, RSD (Complex Regional Pain Syndromes Type I), Causalgia, CRPS (Complex Regional Pain Syndromes Type II), Neurofibromatosis, Chronic Inflammatory Demyelinating Polyneuropathy, Sjogren's syndrome, Lupus, Interstitial Cystitis, Myasthenia Gravis, Hydrocephalus, nail-patella syndrome, residual limb pain, seizures (including those characteristic of epilepsy), or the treatment of these conditions; 410 ILCS 130/10(h)(1). A qualifying patient must register with the Illinois Department of Public Health before purchasing, possessing, and using medical cannabis. In order to register with the State, the patient s physician must first certify that (1) the patient has a debilitating condition, (2) the patient is under the physician s care for the debilitating medical condition, and (3) the patient may benefit from the use of medical cannabis. 410 ILCS 130/10(y). The primary purpose of the Compassionate Use Act is to protect registered qualifying patients and their physicians from criminal prosecution and property forfeiture for patient use of H-3

4 cannabis. 410 ILCS 130/5(g). However, the Compassionate Use Act provides limited protection to patients when it comes to their employment. Employers are prohibited from refusing to hire a job candidate or penalizing an employee based solely on that candidate s or employee s status as a registered qualifying patient. 410 ILCS 130/40(a)(1). However, section 40(a)(1) of the Compassionate Use Act provides some exceptions: No school, employer, or landlord may refuse to enroll or lease to, or otherwise penalize, a person solely for his or her status as a registered qualifying patient or a registered designated caregiver unless failing to do so would put the school, employer, or landlord in violation of federal law or unless failing to do so would cause it to lose a monetary or licensing-related benefit under federal law or rules. Id. (emphasis added). In other words, the Compassionate Use Act allows employers to refuse hiring a job candidate on the basis of his or her patient status if hiring the candidate would put the employer in violation of federal law or otherwise result in the loss of federal funding or license rights. Additional restrictions are imposed on certain job positions under the Compassionate Use Act. For example, possession and use of medical cannabis by a registered qualifying patient is still prohibited in a school bus, on school grounds, or in a correctional facility. 410 ILCS 130/30(a)(2)(A-C). Use of cannabis is also prohibited in any public place, meaning any place where an individual could reasonably be expected to be observed by others and includes all parts of buildings owned by the State or public body. Id. at 30(a)(3)(F). Significantly, [t]he use of medical cannabis by an active duty law enforcement officer, correctional officer, correctional probation officer, or firefighter and [t]he use of medical cannabis by a person who has a school bus permit or a Commercial Driver s License are specifically prohibited. Id. at 30(a)(9-10). Employers may further limit employee possession or use of cannabis pursuant to section 50 of the Compassionate Use Act. An employer may adopt and enforce reasonable regulations concerning the consumption, storage, and timekeeping requirements of an employee who is permitted to use medical cannabis. 410 ILCS 130/50(a). This section also expressly allows an employer to enforce a zero tolerance policy, drug testing and a drug free workplace policy provided that these policies are enforced in a nondiscriminatory manner. Id. at 50(b). II. COURT DECISIONS Although the Compassionate Use Act offers some guidance to weary employers, it leaves a number of important questions unanswered. For example, if an employee fails a drug test but the employee is a registered qualifying patient, may the employer still terminate that employee? Does terminating an employee for violating a drug free workplace policy mean the employer H-4

5 has discriminated against that employee on the basis of a disability under the Americans with Disabilities Act? Does the Right to Privacy in the Workplace Act prohibit employers from taking action against registered qualifying patients? While Illinois courts have not yet addressed the Compassionate Use Act in the employment context, guidance can be found from examining how courts from other states where medicinal and sometimes recreational use of cannabis is legal. A. Drug Testing Policies As noted above, the Compassionate Use Act prohibits employers from taking adverse action against an employee on the basis of his or her status as a registered qualifying patient. Does this protect registered qualifying patients from termination if they fail a drug test? Probably not, so long as the drug testing is conducted in a nondiscriminatory manner. One of the first decisions dealing with the intersection of a state medicinal cannabis law and employment arose out of the California in Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920 (2008). Ross upheld an employer s right to refuse employment to an applicant who tested positive for marijuana which he was legally entitled to use pursuant to California law. The case was brought by a RagingWire job applicant, Gary Ross (Ross), who suffered from a lower back strain and muscle spasms in his back as a result of injuries he sustained while serving in the military. After failing to obtain relief from pain through traditional medications, Ross began using cannabis on his physician's recommendation pursuant to the California Compassionate Use Act. Ross was offered a job expressly on the condition that he pass a drug test. When Ross tested positive for cannabis, the company withdrew its offer of employment. Ross sued the company, alleging RagingWire discharged him in violation of California s Fair Employment and Housing Act and also failed to make reasonable accommodations for his medicinal cannabis use. In siding with the employer, the California Supreme Court acknowledged an employer may be required to accommodate an employee's legal use of drugs, but this was not a legal use, as marijuana was (and still is) illegal under federal law. The court also relied on the fact that the California Compassionate Use Act did not ''eliminate marijuana's potential for abuse or the employer's legitimate interest in whether an employee uses the drug. Ross, 42 Cal. 4th at 927. This decision was not unanimous, however, and the dissenting justices arguing the majority ''disrespect[ed] the will of California's voters who, when they enacted the Compassionate Use Act, surely never intended that persons who availed themselves of its provisions would thereby disqualify themselves from employment. Id. at 934 (emphasis added). The dissent also complained that the majority's opinion ''leaves many Californians with serious illnesses just two options: continue receiving the benefits of marijuana use and become unemployed or continue in their employment, discontinue marijuana treatment, and try to endure their chronic pain or other condition for which marijuana may provide the only relief.'' Id. at H-5

6 Similarly, in Swaw v. Safeway, Inc., No. C15-939, 2015 U.S. Dist. LEXIS (W.D. Wash. Nov. 20, 2015) a federal court in Washington State held that an employee who was terminated for testing positive for cannabis after a workplace accident could not sue his employer, even though he was permitted under state law to use medicinal cannabis. The employer s policy banned controlled substances, including cannabis, and therefore the employee was in violation of the employer s policy. Similar to the language of the Compassionate Use Act in Illinois, Washington s medicinal cannabis statute permits employers to implement a drug free workplace, even if the employee s use of cannabis was offsite and not during work hours. Since the plaintiff agreed to adhere to that policy as a term of his employment, the employer was within its right to terminate him for violating the policy. B. Americans with Disabilities Act Among other things, Title I of the Americans with Disabilities Act, 42 U.S.C (ADA), prohibits an employer from discriminating against an employee on the basis of his or her disability. Does the ADA protect an employee who consumes medical cannabis to treat a disability as defined under the ADA? Probably not. Although discussing Title II of the ADA, James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012) provides some insight as to how a court would likely treat a claim in the employment context under Title I. In James, the plaintiffs, severely disabled Costa Mesa, California residents and medicinal cannabis patients, sued the city for passing an ordinance that banned medicinal cannabis dispensaries within the city limits. Plaintiffs alleged that the ordinance violated Title II of the ADA. The Court of Appeals for the Ninth Circuit rejected the argument and affirmed the lower court s ruling, noting that because the ADA includes cannabis use under its illegal drug exclusion, medicinal cannabis use, even if it is permitted by state law and/or authorized by a medical professional, is not protected by Title II of the ADA. C. Right to Privacy in the Workplace Act Illinois Right to Privacy in the Workplace Act, 820 ILCS 55/1 et seq., prohibits employers from refusing to hire, discharging, or otherwise penalizing an employee for use of lawful products during off hours. 820 ILCS 55/5. Does cannabis constitute a lawful product though? Probably not. In Coats v. Dish Network, LLC, 2015 CO 44, the Colorado Supreme Court upheld the plaintiff s termination because he used cannabis in violation of his employer s drug policy even though cannabis is and was legal under state law. The plaintiff, a quadriplegic, was licensed to legally possess and consume medicinal cannabis. The plaintiff used cannabis only within the limits of his license, never on his employer s premises, and was never under the influence at work. The plaintiff relied on Colorado s employment privacy laws which were designed to keep an employee s lawful activities performed outside the workplace and during nonworking hours out of the employer s considerations. H-6

7 Colorado s lawful activity statute is similar to Illinois s Right to Workplace Privacy Act and prohibits an employer from taking negative action toward an employee for engaging in any lawful activity off the employer s premises during nonworking hours. Despite the plaintiff s argument that cannabis was legal under state law, the court found that because cannabis remained illegal under federal law it was not a lawful activity under Colorado s lawful activities statute. III. IMPLICATIONS FOR PUBLIC EMPLOYERS The differences between the implications for private employers and public bodies when it comes to medical cannabis in the workplace are limited. Notable for public bodies, the Compassionate Use Act specifically prohibits the use of medical cannabis in school buses, on school grounds, in public places including all parts of public buildings or by active duty law enforcement officers, firefighters, school bus drivers, and CDL holders. Public bodies may nonetheless receive job applications from registered qualifying patients or employ individuals who become registered qualifying patients during the course of their employment. Unless the candidate or employee is an active duty law enforcement officer, firefighter, school bus driver, or CDL holder, public bodies cannot refuse to hire the applicant or demote or fire an employee who is a registered qualifying patient merely because of his or her patient status as set forth in section 40(a)(1) of the Compassionate Use Act. To the extent a public body desires to maintain a zero tolerance policy prohibiting the use of all illegal drugs, including cannabis, it is imperative the public body s policy includes cannabis as an illegal drug and includes nondiscriminatory drug testing measures. Based on case law from other states, the employer most likely can refuse to hire a job candidate or terminate an employee who fails to comply with the employer s zero tolerance policy as demonstrated by a failed drug test. Keep in mind, though, that zero tolerance policies discriminately drafted or applied against registered qualifying patients could expose the public body to liability under section 40(a)(1) of the Compassionate Use Act. The lone exception within section 40(a)(1) of the Compassionate Use Act is pertinent to public bodies, many of which receive federal grant funds at some point. Where a public body would otherwise be in violation of federal law or lose federal funding or license rights, the public body may refuse to hire, demote, or terminate an individual because he or she is a registered qualifying patient. This exception appears to require some definiteness as to the loss of funding or a licensing right, not a mere speculation that the public body could be impacted. As a result, it is important to understand the sources of funds used by the public body and the terms associated with those funds. Most notably, the Drug-Free Workplace Act, 41 U.S.C et seq. (DWA), is a federal law that requires federal contractors prohibit the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance by employees in their workplace as a condition of employment. See 41 U.S.C. 8102(a)(1)(A). Federal grantees can face the same issue. 41 U.S.C. H-7

8 8103(a). Illinois Drug Free Workplace Act, 30 ILCS 580/1 et seq. contains nearly identical language as its federal counterpart. Whether the federal or state Drug-Free Workplace Acts apply to all sources of federal or state funds, or a public body is otherwise prohibited under federal or state law from employing a registered qualifying patient, requires a detailed case-bycase analysis and should be discussed with an attorney. Finally, some labor union contracts are being modified to reflect legalized medical cannabis in Illinois. Public bodies may be in a precarious position if they have specifically permitted medical cannabis under a labor union contract, but are obligated at the same time to maintain a drug free workplace under the DWA. IV. CONCLUSION In Illinois, an employer may maintain a zero tolerance policy and implement drug testing in order to sustain a drug free workplace. Both California and Washington courts relied on such employment policies to find that employers acted legally in terminating employees for failing workplace administered drug tests. These results may drive Illinois decisions on this subject. Additionally, because of the ADA s illegal drug exclusion and the language of the Compassionate Use Act in allowing employer s to maintain drug-free workplaces, Illinois courts are not likely at this time to find the ADA or the Right to Privacy in the Workplace Act confers a cause of action to registered qualifying patients. As more employees become registered qualifying patients, employers will be confronted with the reality of balancing workplace drug policies with an employee s right to use medical cannabis. The most important considerations for public employers in Illinois are to implement and maintain clearly-articulated and nondiscriminatory written workplace policies which address use of cannabis by employees and to enforce those policies in a consistent and uniform fashion. Before taking any adverse action against a job candidate or employee because of his or her patient status, know where the public body stands with respect to federal laws and funding and any applicable labor union contract. Finally, the law surrounding medical cannabis is rapidly developing as more states legalize the drug and cases make their way through the courts. The Drug Enforcement Administration recently announced that it will decide later this year whether to modify cannabis s federally illegal status. The 2016 presidential election could also bring changes to the federal prohibition of cannabis. Consequently, it is important before making any decision as to how to handle a registered qualifying patient to consult with counsel as to any recent developments. H-8

9 Stacy E. Crabtree - Associate Stacy focuses her practice on commercial and governmental transactions and litigation. Stacy assists her clients with the negotiation and drafting of a wide range of contracts including purchasing, consulting, equipment finance, and license agreements, and she also assists her clients with corporate organization, governance, and compliance issues. Her clients range from large to small businesses, non-profits and local units of government. Stacy regularly works onsite with a Fortune 50 company assisting its in-house counsel with vendor agreements including cloud service, consulting, software license agreements, and opensource software and freeware compliance issues. The company has touted the relationship as helping it actually lower the company's legal costs while increasing its efficiencies. In the public sector, Stacy has served as general counsel to local governmental entities and represented governmental entities in various contract disputes. Stacy also has experience with school districts, focusing primarily on special education law and due process. Prior to attending law school, Stacy worked for a major insurance company for three years in auto claims and then commercial underwriting. During law school, Stacy served as a law clerk for United States District Court Judge Timothy J. Corrigan and interned with the United States Attorney's Office for the Middle District of Florida. Stacy also participated on the school's Mock Trial team and was an editor for the Florida Coastal Law Review. Stacy started her career with Heyl Royster in the summer of 2010 as a law clerk and then joined the firm full time as an associate in February Publications "Supreme Court Holds Zoo Does Not Qualify as a Public Entity Under Tort Immunity Act Despite Relationship with Forest Preserve District," Illinois Defense Counsel Quarterly (2016) "Error in Denial of Substitution of Judge Voids all Subsequent Court Orders," Illinois Defense Counsel Quarterly (2015) "City Council Committee Members' Settlement in Front of Judge Unenforceable but Sanctionable," Illinois Defense Counsel Quarterly (2015) "I have to Pay a Volunteer What? Liability to Volunteers under the Fair Labor Standards Act," Heyl Royster Business and Commercial Litigation Newsletter (2015) "Preserving Error For Appeal" chapter in Civil Appeals (Illinois): State and Federal, Illinois Institute for Continuing Legal Education (2015) "Right to Substitution of Judge in Newly Filed Case Unavailable Where Counsel Previously 'Tested the Waters,'" Illinois Defense Counsel Quarterly (2015) "Payment of Attorney's Fees on Behalf of Employees Remains Discretionary for Local Public Entities under the Tort Immunity Act Despite Collective Bargaining Agreement," Illinois Defense Counsel Quarterly (2015) "When Employers Become Human Traffickers: An Overview of the Trafficking Victims' Protection Act," Illinois Defense Counsel Quarterly (2014) "Sender Beware: How Your s or Letters may be Ruled a Binding Contract," Heyl Royster Business and Commercial Litigation Newsletter (2014) "FOIA Update: When Texts and s on Your Cell Phone or Tablet Become Public Records," Heyl Royster Governmental Newsletter (2014) "Contract Considerations Before Sharing Company Information with Third Parties," Heyl Royster Business and Commercial Litigation Newsletter (2013) New Laws for the New Year," Heyl Royster Governmental Newsletter (2013) "You Paid for It, But You Didn't Buy It: The Question of Website Ownership," Heyl Royster Business & Commercial Litigation Newsletter (2013) "Religious Symbols in Cemeteries: When Cemetery Decorations Cross the Line of Constitutional Violations," Heyl Royster Governmental Newsletter (2012) "Snow Removal, Tort Immunity, and the ADA," Heyl Royster Governmental Newsletter (2012) H-9 Learn more about our speakers at

10 Public Speaking Medical Cannabis: A New Healthcare Alternative of Illinois Patients Peoria Medical Society (2016) Medical Cannabis and Public Employers Rights Illinois Association of County Officials (2016) Medical Cannabis & Product Liability Illinois Institute for Continuing Legal Education Webinar (2016) #Claims: What Adjusters Need to Know about Social Media Greater Peoria Claims Association Meeting (2016) Volunteers: Opportunity or Trouble? IAPD/IPRA "Soaring to New Heights" Conference (2016) Liability as an Exhibitor and as a Donee Illinois Association of Museums Annual Conference (2015) Medical Marijuana: Legal Update and Property Insurance Coverage Considerations Heyl Royster 30th Annual Claims Seminar (2015) Recent Developments in Advertising and E- Commerce Peoria AdClub Meeting (2015) Legal Considerations for Nonprofits Taking on New Roles Illinois Main Street Conference (2015) When In-House Counsel and Ethics Collide Caterpillar Legal Services Division (2015) Medical Cannabis: A Primer For Employers and Governmental Entities Heyl Royster Lunch & Learn Seminar/Webinar (2014) Risky Business of Accepting Credit Cards Heyl Royster Business & Commercial Litigation Seminar (2013) Social Media and Healthcare Professionals: Appropriate Uses versus Abuses Crawford Memorial Hospital Physicians Group (2013) Building Your Community's Future: Best Practices for Local Government Construction Projects Heyl Royster Governmental Seminar (2013) Business/Employee Record Retention and Production: Strategies for Effective and Efficient Record Retention Heyl Royster Business & Commercial Litigation Seminar (2013) Website Liability and Requirements for Schools Marshall, Putnam, and Woodford Counties Superintendents Meeting (2012) Corruption in Local Government and Duties of Officials to Prevent and Detect Heyl Royster Governmental Seminar (2012) Website Related Liabilities, Losses, & Insurance Issues Heyl Royster Business & Commercial Litigation Seminar (2012) Understanding Open Source Software Legal Risks Caterpillar Engineering Group Meeting (2012) Professional Recognition Named to the Leading Lawyers Emerging Lawyers list (2015, 2016). Only 2 percent of Illinois lawyers under the age of 40 or who have been licensed to practice for 10 years or less earn this distinction. 40 Leaders Under Forty Selected by InterBusiness Issues magazine Professional Associations American Bar Association Illinois State Bar Association Peoria County Bar Association (Continuing Legal Education Committee, Chair present; Special Committee on Mentoring, Chair ) Greater Peoria Claims Association (Board of Directors, 2013-present) Illinois Association of Defense Trial Counsel (IDC Quarterly Recent Decisions columnist) Illinois Association of Museums (MuseNews contributor) Illinois Women in Cannabis Court Admissions State Courts of Illinois United States District Court, Central District of Illinois United States Bankruptcy Court, Central District of Illinois Education Juris Doctor (summa cum laude), Florida Coastal School of Law, 2010 Bachelor of Arts Risk Management and Insurance (summa cum laude), Bradley University, 2005 H-10 Learn more about our speakers at

11 Nathan R. Bach - Associate Nate concentrates his practice in the area of civil litigation, including business and commercial litigation, tort litigation, professional liability, and commercial motor carrier litigation. Nate, a native of Peoria, joined Heyl Royster as an associate in Prior to joining Heyl Royster, Nate worked as a law clerk for the Honorable James E. Shadid, Chief United States District Judge for the Central District of Illinois. As a law clerk, he researched legal and procedural issues and assisted in drafting numerous orders and opinions. Before working as a law clerk, Nate spent three years as an Assistant State's Attorney in Peoria County, IL, where he prosecuted traffic, misdemeanor, domestic violence, and felony cases. As an Assistant State's Attorney, Nate gained significant litigation experience, trying over 30 jury trials and over 100 bench trials to verdict. Publications "Misclassification of Employees as Independent Contractors," Employer's Edge - Heyl Royster Employment Newsletter (2016) Professional Recognition Peoria Area Forty Leaders Under 40 (2012) Professional Associations Illinois State Bar Association Peoria County Bar Association (Board of Directors, ; Chair, Young Lawyers Committee, ; Director at Large ) Abraham Lincoln Court Illinois Association of Defense Trial Counsel Court Admissions State Courts of Illinois United States District Court, Central District of Illinois Education Juris Doctor, Saint Louis University School of Law, 2007 Bachelor of Arts-Political Science, University of Wisconsin-Madison, 2004 Public Speaking Crossroads of Medicinal Cannabis and Employers Rights to Drug-Free Workzones Heyl Royster Webinar, Drug Free Workzones in a Medicinal Cannabis State (2016) Legal Update: Independent Contractors Heyl Royster Seminar, Employer Road Map for 2016: Avoiding Legal Potholes (2015) Recent Changes to the Federal Rules of Civil Procedure Heyl Royster Seminar (2015) The State of the Law Heyl Royster Webinar, Medical Cannabis Risks and Rewards: Doing Business with the Cannabis Industry (2015) H-11 Learn more about our speakers at