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New Medical Marijuana Laws Threaten to Clash With Employer Zero Tolerance Drug Policies

A recent problem in Illinois with employment and medical marijuana could foreshadow problems for Kentucky, which has its own medical marijuana legislation pending.

dutch-weed-2-jpg-1206038-m.jpgIllinois’s new medical marijuana law, which took effect this past January, protects patients from being arrested or prosecuted for using marijuana for medical purposes. However, it does not prohibit employers with zero tolerance policies from terminating employees found to use medical marijuana.

It is unknown how many employees could be affected, but one concern is that in states with medical marijuana laws that are less restrictive — such as California, Oregon, and Washington — the courts have sided with employers when employees have sued over the law. While Illinois’s new law protects employees from being disciplined by employers solely for acknowledging that they have a medical marijuana card, it offers no protection against other strict measures. Companies with government contracts are even more likely to have zero tolerance policies than other companies because the federal government requires such policies.

While some experts believe that Illinois workplaces will need to tweak their policies to reflect the current reality, some state legislators insist that an employer’s workplace rules may remain in place. Representative Lou Lang claimed: “If you have a drug-free workplace, it can remain drug-free.” He noted that had language been inserted restricting employer action, the legislation would have stalled.

Meanwhile, Kentucky has been attempting to pass its own medical marijuana bill. Legislation to legalize medical marijuana passed a House committee recently, though when it will come for a vote in the full House remains unknown. There is skepticism that even if it did pass with a full House vote, such a bill could pass in the Senate, which is led by Republicans. Instead, the sponsors of the Senate legislation have narrowed the focus to allowing trial cannabis use to treat severe childhood seizures. This bill recently cleared a Senate committee. Overall, many Kentucky legislators appear to have a “wait and see” approach, to see whether other states run into abuse and recreation problems.

Nonetheless, a medical marijuana bill in some form appears likely to pass in the future. If so, Kentucky employees may find themselves in the same legal gray area as employees in Illinois. As for Indiana, while it does not have medical marijuana legislation pending, it could be affected by the Illinois situation should one of the employment cases reach the Seventh Circuit Court of Appeals. A Seventh Circuit decision in favor of employers or employees could impact any law that Indiana chose to pass in the future. At present, the Indiana legislature recently introduced a bill that would, at the very least, reduce the legal penalties for being caught possessing small amounts of marijuana.

Miller & Falkner is an Indiana and Kentucky plaintiffs law firm serving residents of Kentucky and Indiana. Located in Louisville, Kentucky, the firm provides representation in the areas of personal injury and employment law. If you need a Kentucky employment law attorney, contact us today for a free consultation.

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