Tag Archives: medical marijuana

Up in Smoke: Recreational Marijuana and its Impact on the Illinois Workplace

Contributed by Noah A. Frank, Michael D. Wong, and Jeffrey A. Risch, May 31, 2019

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.

Marijuana and a gavel

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?

  1. 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.
  2. 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.
  3. 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.
  4. 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.

Illinois Opioid Pilot Program A.K.A. Medical Marijuana Law 2.0

Contributed by Mike Wong, November 6, 2018

Medical cannabis

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.”

 

 

Let the Countdown Begin for the Licensing of Medical Marijuana Registered Users, Dispensaries and Cultivators!

Contributed by Michael Wong

Although the Illinois Medical Marijuana law went into effect on January 1, 2014, marijuana (medical and recreational) is still currently illegal to be possessed or used in Illinois. On July 16, 2014, a significant step was taken towards changing that when the Joint Committee on Administrative Rules (JCAR) approved the administrative rules for the Illinois Medical Marijuana law.

The administrative rules address the licensing of registered users, dispensaries and cultivators, as well as regulations on the operation and management of dispensaries and cultivators. However, the administrative rules still do not provide any guidance to employers on how to comply with the conflicting language of the Illinois Medical Marijuana law when it comes to enforcing drug policies, drug testing and registered users.

With the approval of the administrative rules, applications to become a registered user will start being accepted September 1, 2014, with individuals whose last names begin with A to L being able to submit applications between September 1, 2014 and October 31, 2014, those with last names beginning with M to Z submitting applications between November 1, 2014 and December 31, 2014, and on an open year round basis beginning January 1, 2015. Under the Illinois Medical Marijuana law the Department of Public Health will have 30 days to approve or deny a completed application to become a registered user. This means that individuals will start becoming licensed as registered medical marijuana users by at least October 1, 2014.

That being said, under the law registered users are only allowed to purchase medical marijuana from Illinois licensed dispensaries, which in turn are only allowed to purchase marijuana that is grown in Illinois by an Illinois licensed cultivator. While the administrative regulations set the application process for the 60 dispensary licenses and 21 cultivator licenses, the actual dates that the Departments will start accepting applications have not been set. It is anticipated that the application period for dispensaries and cultivators will be during the fall of 2014, if not sooner. Once the application periods are set, the Departments will post such on their websites.

Even after the dispensaries and cultivators are licensed, registered users will still have to wait for the first crop of marijuana grown by the cultivators in Illinois before they will be able to legally purchase, possess and use medical marijuana in Illinois. Thus, it is anticipated that the legal purchase, possession and use of medical marijuana in Illinois will not occur until early 2015.

It is important that employers take notice of this and proactively take steps to ensure that their policies and procedures are in line with the law. Additionally, employers should make sure to remind employees of their policies on drugs, including prescription drugs and medical marijuana, and specifically the possession of such on company property. This is vitally important to avoid situations where an employee absent-mindedly forgets the policy. While employers may think this is common sense, recently after recreational dispensaries opened in Washington, the City Attorney for Seattle City, Pete Holmes, violated Seattle City’s drug-free workplace policy by bringing marijuana he had legally purchased into city offices.

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.