Contributed by Caryl Flannery
On August 1, 2013 Illinois Governor Pat Quinn signed the Compassionate Use of Medical Cannabis Pilot Program Act making Illinois the 20th state to enact some form of medical marijuana legalization. The law goes into effect January 1, 2014, but regulations and full guidelines for implementation will likely not be in place until next summer. Proving that patience does have its virtues, Illinois has taken note of the bumps and pitfalls other states have encountered with their medical marijuana programs to craft a law that addresses the concerns of both medical marijuana advocates and employers who value a drug free workplace.
The four-year pilot program is highly structured. Patients must obtain a registry identification card by submitting applications which include medical documentation of a covered condition; a written certification from a physician with whom the patient has an established relationship; the name of the dispensary the patient will use; a background check; and other identifying information and certifications. They may purchase only 2.5 ounces at a time, and make purchases at one of 60 highly regulated dispensing outlets.
While the law states that no employer may refuse to hire nor penalize a person solely for his/her status as a registered qualifying patient, there are significant exceptions and protections to keep employers in control of their workplace:
- An employer may refuse to hire, terminate, or otherwise take action against a registered user based on their status if such action is necessary for the employer to follow applicable federal law or to retain a monetary or licensing-related benefit under federal law or regulation;
- An employer may enact a zero-tolerance, drug testing policy as long as it is applied in a non-discriminatory manner and discipline registered users who violate the policy;
- Employers may prohibit employees who are registered users from using, possessing, or being impaired by marijuana while on the employer’s premises and during hours of employment;
- An employer may discipline a registered user who tests positive for marijuana if the employee’s positive status puts the employer in violation of federal law or jeopardizes federal contracts or funding;
- Employers who observes specific, articulable symptoms (such as unusual speech or actions) may conclude that a registered user is impaired and may take disciplinary action if the employee cannot refute the determination;
- There is no cause of action against an employer who imposes discipline based on a good faith belief that the registered user was impaired;
- No health insurance plan is required to cover medical marijuana;
- Employers may prohibit a “guest, client, customer, or visitor” to use legally prescribed cannabis on or in their property.
Employers should remember that this is a state law only. Marijuana – prescribed or otherwise – remains a Schedule 1 drug under federal law, which places it in the same category as heroin and LSD. Possession and distribution of marijuana remains illegal under federal law.
In the employment context, courts have held that federal employment statutes such as the Americans with Disabilities Act and the Family and Medical Leave Act do not protect or allow for the use of medical marijuana. Thus, permitting an employee to take breaks to smoke medically prescribed marijuana would not be a reasonable accommodation under the ADA. Federal agencies that promulgate and enforce employment standards, such as the Department of Transportation, have made it clear that a positive drug test for marijuana is a positive drug test, regardless of the source or reason for the presence of the drug.
Bottom Line: Employers will not have to significantly alter their policies and programs to comply with the new law and will not be required to permit employees to use or be under the influence of medical marijuana in the workplace.