Page 19 - September 2019 FOP Newsletter

for roadside testing. Not surprising, in Illinois, currently there is no roadside testing available for use by law enforcement to test if a driver has been high or even is high in that moment. I am sure the Chicago Police Department will issue clear new guidelines on dealing with traffic stops and suspicions of mar- ijuana use (note sarcasm).
Nearly a dozen of the states that have legalized some form of marijuana use — including Illinois, Massachusetts, Arizo- na and Delaware — have employment protections for med- ical marijuana users. In these states, private-sector employ- ees generally cannot be fired or otherwise be discriminated against for being a registered medical marijuana cardholder or because they test positive for marijuana on a drug test. In other words, off-duty medical marijuana use is protected in these states. Private-sector employers still may fire employees for being under the influence of, or impaired by, marijuana at work or during work hours.
However, in the public sector, law enforcement officers are held to a much higher standard.
Police departments across the country where marijuana has been legalized (either medicinally or recreationally) still prohibit its use for law enforcement officers. Remember, the federal government bans the use (and possession) of marijua- na for any reason. Currently, Chicago Police Officers remain subject to drug and alcohol testing and can be fired for testing positive for the presence of THC (which again is categorized by federal law as a Schedule I substance). State law does not trump the federal prohibition, so Chicago Police Officers are advised to stay away from marijuana use completely.
As we have noted in prior articles, the State Labor Relations Act (“Act”) governs interactions between public-sector em- ployers and the labor unions representing their employees. Under the Act, employers are required to bargain collective- ly with the union over “mandatory subjects of bargaining” which are defined under the law as wages, hours and other terms and conditions of employment. It is well settled under the Act that drug testing is a mandatory subject of bargaining. Accordingly, prior to an employer implementing such a pro- gram or amending an existing program, it must sit down at the bargaining table and reach an agreement with the union. A great deal remains unknown as the new year approaches.
What if a police officer goes to Canada or parts of Europe where recreational marijuana use is legal, experiments with marijuana while there, and several weeks later, upon report- ing to duty is drug tested, which results in significant levels of THC being detected? Can the department discipline the po- lice officer? Was the police officer impaired during the time of the testing? Although illegal under federal law in our country, the substance was legal outside the U.S. Therefore, the police officer did not violate any law at the time of possession or use.
What if a police officer lives with a spouse or partner who utilizes medicinal marijuana on a regular basis, due to a se- vere medical condition, in the police officer’s presence? What happens if the police officer is drug tested at some point, which results in a prohibited level of THC being detected? Can the department discipline and/or terminate the police officer? Was the police officer impaired during the time of the testing?
Finally, how about if a police officer has an adult child (over the age of 21) who lives with the police officer and possesses the legal amount of recreational marijuana at the police offi- cer’s home. Can the department discipline the police officer for being in possession of a Schedule I substance?
The answers to these questions, like any legal hypotheti- cal, depend on a number of factors. Are we at an arbitration hearing or in front of the Police Board? What are the prevailing standards of proof? Who is the fact finder? What is the police officer’s complementary and disciplinary history?
As marijuana legalization develops across the country, the problem will be how to test for impairment due to cannabis use in a non-discriminatory manner. Many public employ- ers (like the CPD) already maintain zero-tolerance policies on drug use and possession and, naturally, don’t want their employees showing up to work intoxicated. Employers can prohibit the very presence of alcohol (and marijuana) at the workplace — and the Chicago Police Department is no differ- ent.
Generally, determining whether an employee is using can- nabis on the job or on their own time will be a bit more diffi- cult. Unlike alcohol, it is very difficult for employers to deter- mine if a positive drug test for marijuana is the result of drug usage during work or on non-work hours, so it is logistically simpler to just have an outright ban. Moreover, no common or agreed-upon definition of how marijuana impairs an in- dividual currently exists. How much cannabis is acceptable? For Chicago Police Officers, it does not matter: marijuana pos- session and use remain illegal according to the federal gov- ernment and are prohibited by the department. As in most police departments across the country, employees are prohib- ited from the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance. Period. This in- cludes marijuana. Of course, only time will tell what happens after Jan. 1, 2020.
CHICAGO LODGE 7 ■ SEPTEMBER 2019 19