The Illinois Medical Marijuana Law has Created Smoke Screens for Employers

Contributed by Michael Wong

The Illinois Medical Marijuana Law and its four year pilot program will become effective January 1, 2014.  However, this does not mean employers will be inundated by individuals who are registered medical marijuana users on January 1st.

Under the Medical Marijuana Pilot Program, the Illinois Department of Agriculture, Department of Financial and Professional Regulation and Department of Health have been tasked with developing administrative rules and regulations for the pilot program.  Officials from those departments have just started meeting to discuss drafting the rules and regulations and do not expect to finalize the rules and regulations until May 2014.  Until those rules and regulations are finalized, individuals are not legally allowed to prescribe, dispense or use marijuana, even for medicinal purposes. 

As we previously stated on August 1, 2013, in Caryl Flannery’s article Employers’ Control Over Drug Use Will Not Go Up In Smoke Under Illinois’ Medical Marijuana Law, there are significant exceptions and protections in the law that allow employers to keep control over their workplace.  However, despite the exceptions and protections, the language of the law will still create some issues that employers should be aware of and consider in applying their policies and procedures. 

The law expressly prohibits employers from discriminating against registered users by penalizing them solely for their status as a registered user, unless failing to do so would create a violation of federal law or cause it to lose monetary or licensing-related benefits under federal law or rules.  While employers cannot discriminate based on an individual’s status as a registered user, the law specifically provides that employers may enforce drug testing policies, including zero tolerance and a drug free workplace, provided such policies are applied in a non-discriminatory manner.  Confused yet?  If not, the law goes on to state that it does not create a private cause of action against employers when the cause of action is based on an employer’s “good faith belief” that the employee used, possessed or was impaired by marijuana during working hours.  

In layman’s terms, while employers can still have a zero tolerance or drug free workplace policy, there may be some exposures.  In essence, each situation will likely be treated differently until Illinois courts or the Illinois legislature provide precedent for employers to follow.  Until then, employers should carefully consider and seek legal advice before automatically denying employment to an applicant or disciplining/terminating an employee who is a registered user based on a drug test.

Employers will also have to keep in mind their duty under the Occupational Safety and Health Act (OSHA) of providing a safe work place for all of its employees.  If a registered user is applying for or currently employed in a safety-sensitive position, his or her marijuana use may not be reasonable based on the position.  While there might be uncertainty as to some safety sensitive positions, it is clear that in positions which require federal licensing or regulation, such as commercial driving, it is absolutely unacceptable for employees to use marijuana.  

Even though the Illinois Medical Marijuana Law and its four year pilot program is still in its infancy, employers should be aware of the ways that it can impact their workplace policies and procedures, drug testing policies (zero-tolerance, random and triggering events), hiring practices and other aspects of their business practices.