In May, we reported on Illinois becoming the eleventh state to permit recreational marijuana beginning January 1, 2020. Noncitizens in these eleven states and the District of Columbia may reasonably conclude that using marijuana in accordance with state law will have no bearing on immigration status. Unfortunately, that is a wrong assumption. Federal law controls immigration, and it remains a federal offense to possess marijuana. For the unsuspecting foreign national, this is a legal distinction that many will not understand. Customs and Border Protection (CBP) Officers at the nation’s borders are the first line of defense in preventing illegal importation of narcotics, including marijuana. U.S. federal law prohibits the importation of marijuana and CBP Officers will continue to enforce the law.
For immigrant marijuana users, federal law prohibits the use
of federal funds to prosecute state-legal medical cannabis, but allows funds to
prosecute state-legal recreational cannabis, thus creating an enforcement
distinction. There will also be increased scrutiny relating to travel outside
the U.S. for green card and Naturalization applicants.
In some jurisdictions such as Colorado, the U.S. Citizenship
and Immigration Service (USCIS) is adding questions to the Adjustment of Status
(green card) interview and medical examination process to determine if a
foreign national uses marijuana or has in the past.
Naturalization eligibility requires the individual to establish “good moral character,” as defined in the Immigration and Nationality Act. A person who engaged in certain conduct as described in the Act is statutorily barred from establishing good moral character. In states such as Washington and Colorado where marijuana has been legal since 2012, the USCIS is aggressively questioning Naturalization applicants regarding marijuana use. For example, a legal permanent resident (LPR) who is applying for Naturalization, and who is in possession of marijuana is barred under federal law from establishing good moral character. The individual will be found to be inadmissible.
Any arriving foreign national who is determined to be a drug
abuser or addict or who is convicted of, or admits to committing acts which
constitute the essential elements of a violation of any law or regulation of
the U.S relating to a controlled substance, is inadmissible to the U.S.
Furthermore, a naturalization applicant who has admitted possessing marijuana
to a federal government official must not travel outside the U.S. The person
may be found inadmissible upon reentry.
There are several legislative efforts afoot in Congress to
resolve the complex issues created by the conflict between federal and state
cannabis laws. In the meantime, though, noncitizens should take a very conservative
Takeaways for noncitizens living in the U.S.:
Never discuss conduct regarding marijuana with a
government official such as a CBP Officer, USCIS, Embassies/Consulates abroad,
If you live in a state that legalized marijuana
consumption, do not use it until you are a U.S. citizen;
Do not carry a medical marijuana card, pot
related stickers, T-shirts, or paraphernalia, and delete any mention of
marijuana on social media; and
If you’ve worked in the marijuana industry, obtain
legal counsel before leaving the U.S. or applying for Naturalization
Stay tuned for further developments in this growing area of
It appears Illinois will become the 11th state to permit recreational cannabis. Once Governor Pritzker signs the legislation, as promised, beginning January 1, 2020, the Cannabis Regulation and Tax Act (“Act”), will allow adults (21+) in Illinois to possess and consume cannabis. While there is a lot “rolled” into the 600 plus page law (pun intended), there are significant employment pitfalls for employers with regard to enforcing drug free workplaces.
The Act expressly permits employers to adopt and enforce “reasonable” and nondiscriminatory zero tolerance and drug free workplace policies, including policies on drug testing, smoking, consumption, storage, and use of cannabis in the workplace or while on-call – which is good for employers.
However, the Act’s language indicates that employers are not allowed to take an adverse action against an applicant or employee for marijuana usage outside the workplace. This is bad for employers, as it makes it much more difficult for employers to identify and address use of marijuana by employees. In particular, the Act amends the Illinois Right to Privacy in the Workplace Act (“Right to Privacy Act”), which prohibits employers from restricting employees from using legal products outside of work. Specifically, the Right to Privacy Act is amended to provide that “lawful products” means products that are legal under state law, indicating that recreational and medical marijuana are legal products that must be treated like alcohol and tobacco. Thus, employers may not discriminate against an employee or applicant who lawfully uses cannabis (recreationally or medically) off-premises during nonworking and non-call hours.
Much like with the Illinois medical marijuana law, the Act changes the emphasis from whether an employee “used” marijuana while employed, to whether the employee was “impaired” or “under the influence” of marijuana while at work or working. As a result, drug testing without any other evidence of the employee being impaired at work or while working will open the door to legal challenges. Specifically, refusing to hire, disciplining, terminating, refusing to return an employee to work or taking an adverse action against an employee or applicant who fails a pre-employment, random, or post-leave return to duty drug test for marijuana will arguably create a claim for the employee against an employer for a violation of Illinois law. For example, an employee who undergoes a urine drug test (which shows use of marijuana within 30-45 days) following a workplace accident may argue that “recreational cannabis was lawfully used outside of work, and the accident/injury was unrelated to the employee’s legal use of cannabis outside of work.” Without more than the drug test result, the employer would be in a vulnerable position to argue against or defend such a claim. However, if the employer completed a post-accident report, which included a reasonable suspicion checklist, in which a trained supervisor observed and recorded symptoms/behaviors of drug use, the employer would be in a much better position to take an adverse action against the employee and dispute any such claim by an employee based on the observations and positive drug test.
With the changes to the Right to Privacy Act, it is important for employers to understand the potential exposure and damages. Under the Right to Privacy Act, aggrieved employees can recover actual damages, costs, attorneys’ fees and fines. As such, employers should make sure their practices and procedures are practical in light of these changes, until and unless the legislature or a court provides further clarity. Of course, the Illinois Department of Labor can provide such clarity through administrative rulemaking. However, that will likely not happen any time soon.
Interestingly, the Act neither diminishes nor enhances the protections afforded to registered patients under the medical cannabis and opioid pilot programs (while cannabis use is not protected under federal law, the underlying medical condition is likely an ADA and IHRA-covered disability!). Much like under the Illinois medical marijuana law, the Act appears to require employers to take an additional step before disciplining or terminating an employee based on a “good faith belief” that the employee was impaired or under the influence of cannabis while at work or performing the job. After the employer has made a “good faith belief” determination and drug tested the employee, but before disciplining or terminating an employee, the employer must provide the employee with a reasonable opportunity to contest that determination. Once the employee is provided a reasonable opportunity to explain, an employer may then make a final determination regarding its good faith belief that the employee was impaired or under the influence of cannabis while on the job or while working, and what, if any, adverse employment action it will take against the employee without violating the Act. Requiring an employee to go through drug testing is still currently the best practice as a positive drug test will provide additional support for a supervisor’s reasonable suspicion determination.
What Employers Should Do to Diminish Legal Risks and Protect their Workforce?
First, get educated and evaluate all policies and practices that touch on providing and ensuring a safe workplace, including job descriptions. Review the law. Talk to legal counsel on an intimate basis. Assess workplace cannabis-tolerance (in general) and implement policies that can be enforced consistently amongst similarly situated employees. Policies that should be reviewed (and that could be affected) include those addressing health and safety (including accident reporting, smoking, and distracted driving), equal employment opportunity policies, workplace search/privacy policies and drug testing policies. Companies should also review with legal counsel, their drug testing vendor as well as their Medical Review Officer, the drug testing methodology being used to make sure that such is producing results that are useful, accurate and well vetted.
Second, ensure managers and supervisors are well trained and capable of enforcing policies. Remember – exceptions and favoritism lead to discrimination claims. Conducting training, especially training on reasonable suspicion detection, will be necessary to avoid legal challenges to a supervisor’s reasonable suspicion determination. Creating and/or updating forms for accident reporting (including witness statements), reasonable suspicion checklists, and established protocols for addressing suspected impairment in the workplace, is now more critical than ever.
Third, clearly communicate management’s position and policies to employees, especially where there is a shift in current policy or practice. Educate employees on the effect of lawful and unlawful drug use and the employer’s policies regarding marijuana.
Fourth, engage competent legal counsel to assist you in this process and in addressing difficult situations before they lead to costly and time-consuming litigation.
Finally, stay tuned for further state and national developments in this growing area of law. Be assured that SmithAmundsen’s Labor & Employment Group will be presenting timely webinars and seminars on this subject in the coming weeks and months.
Like a majority of U.S. states, Illinois’ legal stance on marijuana is becoming more tolerant and liberal – with regard to both medical and recreational use (also called “adult use”). As we previously reported on November 6, 2018, the Alternatives to Opioids Act of 2018, PA 100-1114 amended Illinois’ Medical Cannabis Pilot Program to allow individual prescribed opioid medication to enroll in the Illinois Opioid Alternative Pilot Program (OAPP). The OAPP allows these individuals to seek relief through the legal use of medical cannabis, rather than opioid medications. In the first two months of the program, 1,000 patients registered (compared with 61,231 qualifying patients that have been registered under the medical cannabis pilot program since September 2, 2014). This can be attributed to the decrease in time it takes to register, as well as the decrease in requirements and restrictions for qualifying as a registered patient under the OAPP.
Additionally, like many other state legislatures, the Illinois legislature has proposed bills, including HB-0902 which would legalize recreational use of marijuana. (See our prior post on this proposed bill). Even the federal government loosened its regulations regarding marijuana products through the Agricultural Improvement Act of 2018 (AIA), which specifically addressed and legalized the research and production of industrial hemp (marijuana plants having less than .03 percent THC concentration). In particular, the AIA legalized CBD (the non-psychoactive component of marijuana) derived from industrial hemp plants. (See our prior post on this act). It is important to note that while there are legal CBD products, which are derived from industrial hemp plants, CBD derived from marijuana plants with higher THC levels are NOT legal on the federal level.
It is likely that 2019 will see continued and increasing tolerance of medical and recreational marijuana on federal, state, and local levels. Employers should implement the following steps now to protect their businesses.
corporate tolerance for marijuana use (at least off-duty), and how that will
impact drug testing. For example, if off-duty use is a non-issue, then
consider the type of drug test used for testing marijuana or removing marijuana
from the drug panel for certain tests (e.g. applicants) – which can only
indicate the presence of the drug in the system and not actual impairment, or how
you will treat positive tests for marijuana depending on the type of test and
positions. However, be aware that making exceptions for particular candidates
or employees could leave the company susceptible to discrimination claims (such
as, but not limited to, disability claims).
policies to comply with the laws (disability, medical leave, registered user
protections), company tolerance, and external pressures (e.g.,
and update job descriptions – especially for safety sensitive positions.
appropriate management training – including identifying impairment and
mandating substance testing, how and when to involve human resources, medical
nature of information and company’s policies on marijuana.
that disability laws, which never protect at-work impairment, may protect an underlying
medical condition, and as such companies should be prepared to engage in the
ADA interactive process.
understand the implications of and interactions with other laws – like the
FMLA, Workers’ Compensation, and equal employment opportunity laws.
policies consistently to avoid discrimination claims.
the advice of experienced employment counsel to deal with difficult employees
or potentially risky discipline/termination situations.
While these steps are useful for protecting businesses in
light of developing marijuana legalization trends, they are also practical
audit and compliance reminders under other laws, including but not limited to
the Americans with Disabilities Act and mandated leave laws.
Medical marijuana in prescription jar near stethoscope
On August 28, 2018, Illinois Governor, Bruce Rauner, signed into law the Opioid Alternative Pilot Program which expands and modifies the Illinois Medical Marijuana law in several important ways that are relevant to employers.
First and foremost, the Pilot Program allows doctors to certify if an individual qualifies to use medical marijuana under the Opioid Alternative Pilot Program as an alternative to prescribing opioids (such as Codeine, Norco, Vicodin, Hydrocodone, Demerol, or Percocet). In this day and age, almost any serious injury in which there is surgery or pain issues, doctors will prescribe a pain killer, which is often an opioid. Under the Opioid Alternative Pilot Program doctors will now have the ability to certify an individual to get medical marijuana, instead of prescribing opioids. In doing so, an employee’s doctor must certify that the employee has been “diagnosed with and is currently undergoing treatment for a medical condition where an opioid has been or could be prescribed.” Once the doctor’s written certification is uploaded to the Illinois Cannabis Tracking System and verified, the employee will receive a “Provisional Registration” which will allow the individual to purchase medical marijuana for a period of 90 days. While we are waiting on the Illinois agencies to issue rules and regulations to clarify this process, it appears this “Provisional Registration” will allow an individual to purchase medical marijuana the same day that they receive the written certification – much like an individual could pick up a prescription for opioids from a pharmacy the same day they visited their doctor and got the opioid prescription.
The law also extends “Provisional Registrations” to individuals who are certified as having a debilitating medical condition. This means that individuals who seek to become registered medical marijuana users no longer have to wait three to four months to receive their registration cards before being able to purchase medical marijuana. Rather, they can get a “Provisional Registration” simply by registering online through the Illinois Medical Cannabis Pilot Program’s eLicense System. Once registered, individuals will get a Provisional Registration that will allow them to purchase medical marijuana while the Illinois Department of Public Health processes their application.
The law also expands access by removing the section of the law that prohibited individuals with certain criminal convictions from becoming registered users and with it the requirement for fingerprints and background checks.
All in all, the Opioid Alternative Pilot Program significantly expands who can get medical marijuana in Illinois and provides faster and easier access. This means that Illinois employers can expect to see more employees who are legally allowed to purchase and use medical marijuana in Illinois.
A few steps that employers can take to make sure they are ready for this program are:
Make sure managers and supervisors are aware of this change in the law and the importance of properly documenting any reasonable suspicion drug tests.
Make sure that Employee Handbook and Drug Testing Policies are up to date.
Understand how to enforce a Drug Free Workplace policy, without discriminating against a medical marijuana cardholder
*This article was changed after initial publication to make clear that the doctors will not be “prescribing” medical marijuana, but rather will be “certifying” that the individual has been “diagnosed with and is currently undergoing treatment for a medical condition where an opioid has been or could be prescribed.”
While marijuana use remains unlawful under federal law, 30 states and Washington D.C. have legalized some form of medical use. Eight states and Washington D.C. have legalized recreational marijuana for adults. More cities, states, and counties have taken steps towards legalizing adult recreational use and increased tax revenues, or to decriminalize possession of small amounts (this might be seen as a tacit legalization without the tax benefits).
Illinois may be next to legalize adult recreational use, with a majority of those polled in the state supporting legalization, and $350M to $750M in annual tax revenue on the line to help plug a $6B+ deficit. What is clear is that marijuana use may become more prevalent, and the impact on business felt more frequently.
Here is what you need to know now:
Medical cannabis users may still be protected! While use of cannabis is still unlawful under federal law, the steps required to become a registered medical user in most states imply that the user has an underlying medical condition that would be considered a disability, protected under the Americans with Disabilities Act, or similar state or local law. Therefore, consideration must be given to these equal employment opportunity laws.
Impairment at work is never tolerated. Businesses must be proactive in implementing employment policies regarding substance and alcohol use and impairment in the workplace. Consistent, nondiscriminatory enforcement of these policies will help protect businesses from equal employment opportunity/disability claims.
Treat cannabis like: heroin, prescription medication, or alcohol – depending on your view and consistent with state law.
Heroin: Remember, cannabis is unlawful under federal law, and employers may implement drug-free policies.
Prescription medication: In states where medical cannabis is lawful, and subject to the above, remember that use of cannabis by someone other than the registered user is the same as abusing someone else’s prescription. This use is not protected by any law.
Alcohol: Where recreational use is in play, subject to the above, many states protect lawful conduct during non-working hours (e.g., using cannabis after work); however, use and/or impairment at work need not be tolerated.
Prepare Now for Recreational Marijuana:
Given current trends, recreational use seems likely to be a question of “when.” Proactive steps today will put the company in a position to make reasoned decisions, rather than reactionary moves opening the company to claims of discrimination. This includes:
Reviewing the company’s philosophy towards marijuana, prescription medications, and alcohol in the workplace. Ensuring that supervisors have appropriate training on these issues.
Updating handbooks and manuals to reflect drug testing, workplace search, disability, and other related policies.
Determining safety-sensitive positions, and updating written job descriptions accordingly.
Engaging experienced employment counsel to audit policies and practices to ensure compliance and to address policy violations, investigations, and disability accommodation and related matters as they arise.
Medical marijuana (MMJ) is now permitted in 23 states and Washington D.C. Out of those 23 states four of them permit recreational use. Though it remains illegal on the Federal level, the U.S. Department of Justice recently announced the release of over 6,000 inmates convicted of nonviolent drug charges. This begs the question – are you prepared for medical cannabis in the workplace?
Most states with MMJ prohibit discrimination on the basis of a worker or applicant being a registered patient. However, employers should also carefully consider that a registered patient’s underlying medical condition is likely a disability under the Americans with Disabilities Act. As a result, employers that discriminate against (or refuse to provide reasonable accommodations for) a MMJ user could face unanticipated exposure under the ADA and other equal employment opportunity laws. Therefore, employers may regulate use and impairment in the workplace, but not discriminate against the underlying condition or status as a registered patient.
Significantly, employers will also have to carefully scrutinize their background check process to ensure compliance with the Fair Credit Reporting Act, EEOC guidance, and “Ban the Box” laws to avoid any unintentional discrimination. This is especially true with the impending release of inmates with actual conviction histories. In general, a background check policy should be tailored to the position(s) being applied for, and employers should have a bona fide basis for disqualifying those with a criminal history (i.e., a nurse with access to controlled substances versus a groundskeeper). If there is no bona fide reason for excluding those with certain types of crimes, then do not do so.
Drug (In)Tolerance & Testing
Employers need to determine what they will and will not tolerate. Zero tolerance policies and discipline for impaired work (especially resulting in injury or damage) are permitted. Use by a non-registered user is not protected conduct (the same as using another’s codeine).
Take a close look at drug testing policies to ensure that they are based on reasonable suspicion: lack of agility, dexterity, and coordination could be the result of impairment from MMJ or other intoxicating substances, or could be the physical manifestation of the underlying protected disability. A good faith basis for considering discipline and providing the employee with the opportunity to explain will help mitigate risk of a discrimination claim.
How to Prepare for MMJ
Employers should take proactive steps today to ensure compliance with the various laws now to avoid bigger problems later. This includes:
Reviewing the company’s philosophy towards medical marijuana and other controlled substances in the workplace, and ensuring that managers and supervisors are training in the company’s policies.
Determining which positions are safety-sensitive, and updating job descriptions accordingly (side note: with impending updates to the DOL’s FLSA regulations, it is not a bad time to consider which positions are non/exempt).
Updating handbooks and manuals to reflect drug testing, workplace search, disability, and other related policies.
Engaging employment counsel to audit policies and practices to ensure compliance prior to there being an incident.
On June 15, 2015, the Colorado Supreme Court upheld the appellate court’s ruling that employers can lawfully terminate employees for use of medical marijuana outside of work in compliance with a drug free workplace policy in Coats v. Dish Network, 2015 CO 44 (June 15, 2015).
This is an important decision for employers as many of the state laws “legalizing” marijuana for medical and/or recreational use have been recognized as providing protections from criminal laws, but are unclear as to how much, if any, civil or employment protections are provided to employees under those laws and other state laws.
In Coats v. Dish Network, an employee in an administrative position tested positive during a random drug test. The employee advised the employer that he had a state-licensed medical marijuana card and only used marijuana at home outside of work. After reviewing this information the employer terminated the employee for violating its drug free workplace policy.
The employee then sued the employer under Colorado’s Lawful Activities Act, Colo. Rev. Stat. Ann. § 24-34-402.5 (West), which prohibits employers from disciplining or terminating an employee for lawful activities engaged in off the premises of the employer during non-working hours. Colorado’s Lawful Activities Act is similar to many other state laws, including Illinois, California, Minnesota and New York, which were primarily enacted to prohibit employers from having policies that would prohibit employees from engaging in lawful activities, such as tobacco and alcohol use, outside of work.
The Colorado Supreme Court held that the Colorado Lawful Activities Act only protected outside-of-work activities that are lawful under both Colorado law and federal law. As such, any activities that are unlawful under federal law, like the use of marijuana (medically or recreationally), are not protected under Colorado’s Lawful Activities Act.
This is important, as Colorado employers are able to enforce drug free workplace policies without violating Colorado’s Lawful Activities Act. Additionally, it provides employers in other states some indication that their state courts may follow the Colorado Supreme Court’s lead and find that employers may still enforce drug free workplace policies without violating their state laws. It should be noted that the Colorado Supreme Court relied in part on the federal classification of marijuana as a Schedule I drug that has no medically accepted use, a high risk of abuse and a lack of accepted safety for use under medical supervision, and that a change to the federal classification of marijuana could impact this decision.
The takeaway from the Coats v. Dish Network decision for employers is that until there is clear statutory language or case law stating otherwise, employers are able to enforce their drug free workplace policies. That being said, since this is an issue in which case law is still developing and each state has different statutory language and regulations, employers should consult with legal counsel in addressing these types of issues prior to making any discipline or termination decision.