The Illinois FOP Labor Council

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By Aaron Janik, Attorney - Tuesday, May 28, 2013

 

Almost all state and local governments have looked for new streams of revenue as they, along with the federal government, attempt to recover from the “Great Recession”.  In an attempt to capture more revenue, with limited areas in which to look, many states have either cut services or raised taxes, and in many cases, done both.  However, a new revenue stream has become increasingly popular in recent years for several states.  That revenue stream is the regulation and taxation of medical marijuana (and in some cases recreational marijuana).

            However, even with the “legalization” of medical marijuana, the drug, in any form, is still classified by the federal government as a Schedule I drug under the Controlled Substances Act (21 U.S.C § 801 et seq.).[i]  Despite the illegality of the drug, no less than 18 states and the District of Columbia have medical marijuana laws on their books.[ii]  These laws allow certain individuals, typically referred to as patients, to grow, posses, or use marijuana for medicinal purpose.[iii]  Recently, two states, Colorado and Washington, have taken their medicinal laws a step further and passed legislation to legalize and regulate small amounts of “recreational” marijuana for individuals over the age of 21.[iv]  In fact, the Colorado legislature became the first state to enact a taxation system relative to recreational marijuana.[v]

Interestingly, because marijuana is categorized by the federal government as a Schedule I drug it has been deemed to have “no current medical use in treatment in the United States.”[vi]  It therefore seems counterintuitive that a “drug” which has been deemed to have “no current medical use” by the federal government can be classified by certain states as a drug that is acceptable for medical use.

One might ask - how can states enact laws that seem to circumnavigate federal statutory code?  The answer lies within the principles of federalism.  Federalism prevents the federal government from mandating active support or participation in the enforcement of federal laws by states.[vii]  Moreover, under the Tenth Amendment the federal government, specifically Congress, is limited in its ability to force states to enact similar criminal prohibitions, repeal state medical marijuana statutes and/or direct police officers to enforce federal laws.[viii]

Illinois is one of ten states that currently has medical marijuana legislation pending.  This is in addition to the 18 states and District of Columbia that already have medical marijuana laws on the books.[ix]  Earlier this year, on April 17, 2013, the Illinois House passed House Bill 1 sponsored by Skokie Representative Lou Lang (D).[x]  House Bill 1, entitled the “Compassionate Use of Medical Cannabis Pilot Program Act”, would create a four (4) year pilot program allowing patients suffering from one or more of 33 ailments or diseases to purchase and possess 2.5 ounces of marijuana during a 14-day period.[xi]  It passed by a 61-57 margin.[xii]

House Bill 1 was subsequently sent to the Senate, which passed the measure by a margin of 35-21.[xiii]  The Bill now awaits Governor Pat Quinn signature before it takes effect.  Although Governor Quinn has not expressed his intentions relative to whether he will sign the bill one way or the other, he has said he is open-minded and will consider the legislature's decision on the matter. [xiv]  The governor has publicly stated he was recently visited by a veteran suffering from war founds who was helped by the medical use of marijuana. Quinn said he was "impressed by his heartfelt feeling" on the issue.[xv]  Lt. Governor Sheila Simon, a former prosecutor, has indicated she is in favor of the legislation after meeting with patients, including veterans.[xvi]  Those comments, coupled with Quinn’s comments that he was “open-minded” about the legislation, lead many supporters of the legalization effort to believe he will sign the bill.[xvii]

The law, which experts are calling the most restrictive medical marijuana law in the nation, allows for up to 22 cultivation centers with up to sixty (60) dispensing centers.[xviii]  The centers would be regulated by the Illinois Department of Licensing and Professional Regulation.[xix]  Unlike many states medical marijuana laws, Illinois patients would be prohibited from growing their own marijuana.[xx]   Moreover, patients and caregivers under House Bill 1 would have to undergo background checks and be over the age of 21.[xxi]

In the event medical marijuana is “legalized” in Illinois, employees in both the public and private sector will be faced with a plethora of legal issues.  However, many of those issues that will surface if medical marijuana becomes “legal” in Illinois have been addressed by legislatures in states that have already legalized medicinal marijuana.  Therefore, for guidance, Illinois public safety employees should look to states where issues such as whether a public safety employee officer could be prescribed and utilize medical marijuana, whether a police officer can arrest an individual who possesses medical marijuana, and/or whether an employee can be terminated for failing a drug screen have been dealt with already.

The United States Supreme Court held that possession of marijuana is illegal under the CSA regardless of whether a state allows the use of medical marijuana. Gonzales v. Raich, 545 U.S. 1, 27-29 (2005).  Similarly, the Sixth Circuit has held that “private employees are not protected from disciplinary action as a result of their use of medical marijuana, nor are private employers required to accommodate the use of medical marijuana in the workplace.” Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 437 (6th Cir. 2012).  Finally, in a recent decision, a Colorado appeals court has held that an employee’s off-duty use of “medical marijuana,” although allegedly in accordance with the state’s medical marijuana law, was not lawful or protected for purposes of the state’s “legal activities” law, and therefore his employer did not violate that law by dismissing him.  Coats v. Dish Network, L.L.C., Nos. 12CA0595 & 12CA1704, 2013 Colo. App. LEXIS 616 (Colo. App. Apr. 25, 2013).

How do all those cases tie into the legalization effort in Illinois and how do they relate to public safety employees?  First, the premise that marijuana remains illegal under federal law is paramount for the purposes of this article.  Typically public safety employees take an oath upon being sworn in.  That oath typically requires one to uphold the United States Constitution.  Although the words “medical marijuana” are absent from the Constitution, Article VI states, “this Constitution, and the laws of the United States which shall be made in pursuance thereof….shall be the supreme law of the land”.  The essence of Article VI, which is also referred to as the Supremacy Clause, means that federal law trumps state law.  The Court applied that Clause in the Gonzalez case cited above, holding that since marijuana is illegal under the CSA it cannot be legal in any state.

Moreover, the bureau of Alcohol Tobacco and Firearms issued an “Open Letter to All Federal Firearms Licensees” on September 21, 2011.  In that letter it warned that anyone who learns that the potential purchaser of firearms or ammunition is a medical marijuana patient must not participate in the transaction.[xxii]  The letter went onto state, “any person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purpose, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunitions.”[xxiii]

Although there is no requirement in Illinois that one must be licensed by the ATF in order to carry a gun, the ATF’s position is clear - anyone who uses marijuana, even for medicinal purposes, cannot posses a firearm.  As such, the ATF’s position would seem to create a predicament for public safety employees who are required to carry a firearm as part of their duties.  Moreover, the AFT’s position could give employers a basis for seeking to discipline employees.

Two other cases, Casias and Coats, apply to private sector employees and medical marijuana although their holdings would seem to apply to public sector employees as well. As such, it is important to review them and the implication for public sector employees.  In Casias, Wal-Mart fired an at will employee (Casias) after he tested positive for marijuana.  Casias filed suit; in essence, claiming Wal-Mart’s application of its drug policy violated the Michigan Medical Marihuana Act (MMMA).  The Court held the MMMA does not regulate private employment.  The Court stated, “the Act provides a potential defense to criminal prosecution or other adverse action by the state.”  The Casias Court went on to explain that the “Michigan Court of Appeals recognized possession and use of marijuana in Michigan – even for medical purposes – is still a crime.”  Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 437 (6th Cir. 2012)

In Coats, Dish Network terminated an employee (Coats) after he tested positive for marijuana, in violation of the employer’s drug policy.  Coats, a quadriplegic who worked at a call center, alleged he was licensed to use marijuana pursuant to Colorado’s Medical Marijuana Amendment Act.  He further alleged his termination violated Colorado’s Lawful Activities Statute.  This statute prohibits an employer from discharging an employee for “engaging in any lawful activity off the premises of the employer during nonworking hours.”  The trial court granted the employer’s motion to dismiss.  The appellate court affirmed, holding that marijuana use was not lawful activity on federal or state ground.  Coats v. Dish Network, L.L.C., Nos. 12CA0595 & 12CA1704, 2013 Colo. App. LEXIS 616 (Colo. App. Apr. 25, 2013).

Taking those rulings and applying them to the public sector, specifically to public safety employees, would seem to be an easy progression.  However, the issue of medical marijuana and public safety employees leaves many questions unanswered as each state is unique in its enforcement of drug laws.  Many of those questions are left unanswered by House Bill 1.  For instance, some states, such as Hawaii, have enacted laws requiring police departments to treat medical marijuana like any other prescription drug.[xxiv]  However, as it relates to Illinois, the answer to the threshold issue of whether public safety officers may utilize validly prescribed medical marijuana appears to be “no.”

In fact, House Bill 1 states, “this Act does not permit any person to engage in, and does not prevent the imposition of any civil, criminal, or other penalties for engaging in, the following conduct: The use of medical cannabis by an active duty law enforcement officer, correctional officer, correctional probation officer, or firefighter.”  Because House Bill 1 creates a pilot program, it is reasonable to conceive some of the issues stated above will be addressed by regulators or before a committee in the House.      

However, the questions go much deeper than just the public employees’ use of the drug.  For instance, what if a public safety officer’s spouse or adult child is prescribed medical marijuana?  Can that employee be disciplined for failing to take action against their family member?  What if that same officer is the caregiver for an ill family member, who under the Act is allowed to handle and assist the ill family member with the ingestion of medical marijuana?  These questions and others posed earlier are just too fresh to answer.  The final disposition to those questions will be resolved by the legislature and most likely the courts.

At its core though, it appears that any employee, whether private or public sector, who chooses to use medical marijuana runs the risk of being discharged from his/her employment should it be discovered.  Therefore, if a medical marijuana bill passes in Illinois it will not be carte blanche for any employee to seek relief from ailments with marijuana.

As more states look to bring in new revenue and social attitudes about medicinal marijuana shift, both regionally and nationally, employers and employees will need to address this issue whether through negotiations, labor management meetings, or lobbying efforts.  Until such time that it becomes clear as to what public safety employees are clearly allowed to do with respect to this topic, it is best to continue to just say “NO”.

ENDNOTES

 

[i] 21 U.S.C. § 801 (2000).

[ii] U.S. Congressional Research Service State Legalization of Recreational Marijuana: Selected Legal Issues (R43034; April 5, 2013), by Todd Garvey & Brian T. Yeh.  Text in Federation of American Scientists Accessed April 30, 2013

[iii] U.S. Congressional Research Service Medical Marijuana: The Supremacy Clause, Federalism, and the Interplay Between State and Federal Laws (R42398; November 9, 2012), by Todd Garvey.  Text in: Federation of American Scientists Accessed April 30, 2013

[iv] Id.

[v] The Two-Way: Breaking News from NPR Colorado Lawmakers Set Taxes and Rules for Marijuana Sales http://www.npr.org/blogs/thetwo-way/2013/05/09/182604241/colorado-lawmakers-set-taxes-and-rules-for-marijuana-sales (last updated May 9, 2013).

[vi] Id.

[vii] Id.

[viii] Id.

[ix] ProCon.org  10 States with Pending Legislation to Legalize Medical Marijuana (as of Apr. 22, 2013).  http://medicalmarijuana.procon.org/view.resource.php?resourceID=002481 (last updated April 22, 2013).

[x]The Courier-News Medical Marijuana, Sex Education Bills pass Illinois House http://couriernews.suntimes.com/news/19547945-418/medical-marijuana-bill-passes-illinois-house.html (last updated April 17, 2013).

[xi]Illinois NORML http://illinoisnorml.org/ilnorml/illinois-house-passes-medical-cannabis-bill-hb1-61-57/  (last updated April 17, 2013).

[xii] Id.

[xiii] CBS Chicago Illinois Senate Passes Medical Marijuana Legislation http://chicago.cbslocal.com/2013/05/17/illinois-senate-passes-medical-marijuana-legislation/ (accessed June 8, 2013).

[xiv] Id.

[xv] BND Illinois House approves plan to legalize medical marijuana http://www.bnd.com/2013/04/17/2581296/illinois-house-approves-plan-to.html (last updated April 17, 2013).

[xvi] CBS Chicago Illinois Senate Passes Medical Marijuana Legislation

[xvii] Id.

[xviii] NBC Chicago Illinois House Approves Medical Marijuana Bill http://www.nbcchicago.com/blogs/ward-room/Medical-Marijuana-Vote-Expected-Today-203389081.html (last updated April 17, 2013).

[xix] NBC Chicago Illinois House Approves Medical Marijuana Bill http://www.nbcchicago.com/blogs/ward-room/Medical-Marijuana-Vote-Expected-Today-203389081.html (last updated April 17, 2013).

[xx] Id.

[xxi] Id.

[xxii] Firearms and Medical Marijuana  http://arizonamarijuanalawyers.com/wp-content/uploads/2013/02/Firearms-and-Medical-Marijuana1.pdf

[xxiii] Id. .

[xxiv]KITV.com Number of police officers holding medical marijuana cards remain a mystery http://www.kitv.com/news/hawaii/Number-of-police-officers-holding-medical-marijuana-cards-remains-a-mystery/-/8905354/10593984/-/cygkt6z/-/index.html (last updated April 12, 2012).

 


Editors Note: Aaron Janik has been an attorney with the FOP Labor Council since February 2011.  He received his Bachelor’s Degree from Northern Illinois University in 2000 and his law degree from The John Marshall Law School in 2008 and worked for the Chicago labor firm of Poltrock & Poltrock from 2008 until 2011, representing the Chicago Teachers Union.  Aaron serves as Co-Chair of the American Bar Association Young Lawyers Division Labor & Employment Law Committee.  He is also the ABA YLD Fellow to the State and Local Government Bargaining and Employment Law Committee and also serves as the Co-Chair of the Chicago Bar Association’s Young Lawyers Section Labor and Employment Law Committee.  He has mentored high school students at Richards Career Academy in Chicago since 2009 and alos mentors law students at The John Marshall Law School.  In his spare time Aaron volunteers his time coaching youth basketball and baseball in the south suburbs.