Tag Archives: Medical cannabis

Are Employment Rules Getting Hazier With Legal Marijuana?

Contributed by Noah A. Frank, April 18, 2019

the cannabis leaf and judge gavel

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.

  • Determine 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).
  • Update policies to comply with the laws (disability, medical leave, registered user protections), company tolerance, and external pressures (e.g., contracts). 
  • Review and update job descriptions – especially for safety sensitive positions. 
  • Implement 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.
  • Understand 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. 
  • Similarly, understand the implications of and interactions with other laws – like the FMLA, Workers’ Compensation, and equal employment opportunity laws.
  • Enforce policies consistently to avoid discrimination claims.
  • Seek 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.

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.

Employers’ Control Over Drug Use Will Not Go Up In Smoke Under Illinois’ Medical Marijuana Law

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.