Pautsch, Spognardi & Baiocchi Legal Group LLP
Monday Morning Minute
In This Issue
Employers and Medical Marijuana Issues
IL Wage Payment Act Applies to Executives-Don't Forget!
                  September 24, 2018
 
COMMON SENSE SOLUTIONS
FOR
YOUR CHANGING WORKPLACE
                      

www.psb-attorneys.com 

 

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WHAT SHOULD AN EMPLOYER DO WHEN AN OTHERWISE QUALIFIED APPLCANT FAILS A DRUG TEST WHILE USING MARIJUANA FOR MEDICAL PURPOSES?
First and foremost, CHECK STATE LAW! This remains a troubling issue for employers in states that have enacted medical marijuana laws and/or laws allowing for recreational marijuana laws. We have written on this perplexing issue in the past focusing in the Colorado Supreme Court's decision which held that state's protection of employees who are engaging in "lawful activities" did not shield an employee using state-law protected medical marijuana from termination.
  
Last week a Connecticut federal court judge issued a decision for employers concerning Connecticut's Palliative Use of Marijuana Act (PUMA). This federal judge granted summary judgment in the employee's favor in connection with her PUMA claim. The court concluded that the Company violated PUMA by rescinding the job offer based on a positive preemployment drug test because was a "qualifying patient" under Connecticut law.

In so doing, the court rejected the Company's argument that its zero-tolerance policy complied with the Drug Free Workplace Act (DFWA), which requires federal contractors to make a "good faith effort" to maintain a drug-free workplace. The federal judge concluded that the DFWA does not prohibit federal contractors from employing someone who uses medical marijuana outside of the workplace. The emphasized that PUMA does nothing to limit an employer's ability to prohibit the use of intoxicating substances during work hours, but it does protect a "qualifying patient" from an adverse employment action for using marijuana "outside of work hours and in the absence of any influence during work hours."

CAUTION and PLEASE NOTE that this is an area of the law that is not yet settled. And that there will be different results in each state as state laws on marijuana use vary greatly----and judicial interpretations of these laws will also greatly vary. Before proceeding to enforce your drug-testing policy against individuals purportedly using marijuana for medicinal purposes, you are well-advised to review all applicable state laws.  Of course, feel free to contact PSB if you have any questions on this. 
REMEMBER:  IL WAGE PAYMENT ACT APPLIES TO EXECUTIVES 
Most employers are aware that they must pay final compensation (including vacations and bonuses) to separating employees, and that there are special rules regarding deductions from an employee's pay.  It is important to recognize that the Illinois Wage Payment and Collections Act also applies to executives and professionals who depart the employer's employment.  The Illinois courts have made this statute a powerful legal tool for executives who quit or are terminated and feel that they have not been paid all that is owed to them under their employment agreement. 
 
To have a cause of action in circuit court, the executive must work in Illinois, although he or she does not have to be a resident.  If the executive prevails in court, he or she is entitled to reasonable attorney's fees.  An executive may not have a case if he or she is signatory to an arbitration agreement that requires a neutral arbitrator to decide the claim, or if they have a written contract containing a choice of law provision requiring that the claim be brought in a jurisdiction other than Illinois.  The statute also provides for personal liability for an officer or agent of the employer who knowingly permits the employer to violate the Act and refuse payment.      
 
Contact any PSB Legal attorney if you have questions regarding the final compensation due to departing employees and executives.

PAUTSCH, SPOGNARDI & BAIOCCHI LEGAL GROUP is a law firm dedicated to finding common sense, affordable solutions for businesses to labor, employment, human resource and general business needs. With over 75 combined years of experience among its 3 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 

 

For more information on the firm, please go to our website at www.psb-attorneys.com or Lisa at lab@psb-attorneys.com