Illinois’ New Medical Marijuana Law: Strategies for the Coming Months

Illinois’ medical marijuana law became effective January 1, 2014. The Compassionate Use of Medical Cannabis Pilot Program Act protects qualified registered patients (as well as their doctors and drug providers) from criminal prosecution for using medical marijuana. While not much court or regulatory guidance exists for the new law, Illinois employers should take time to evaluate how the law impacts their workplaces. 

Who is a Qualified Registered Patient?
To become a medical marijuana-qualified registered patient, Illinois residents must secure a recommendation from an Illinois-based doctor (with whom they had a prior and bona fide relationship) for treatment of one or more of approximately 40 debilitating medical conditions (e.g., cancer, glaucoma, HIV/AIDS, ALS, multiple sclerosis). The Illinois Department of Public Health will review doctor recommendations to create a patient registry and must approve marijuana prescriptions before they are filled. Qualified registered patients may purchase 2.5 ounces of marijuana every 14 days. Early estimates indicate that 10,000 to 15,000 Illinois residents will participate in the program.

What the Law Could Mean for Your Workplace
The statute itself provides some guidance on the respective rights of employees and employers. On one hand, the law prohibits employers from discriminating against employees or applicants on the basis of their status as registered patients, unless failing to do so would result in a violation of federal law or the loss of a federal contract. On the other hand, employers may take an action adverse to the employee on a “good faith belief” that the employee used, possessed, or was impaired by marijuana during working hours or while on the employer’s premises. The law provides no private right of action against the employer when it acts on such good faith belief. The law also permits employers to:

• Adopt reasonable rules governing the use of medical marijuana, such as consumption, storage, or time-keeping requirements.
• Enforce policies relating to drug testing, zero tolerance, or a drug-free workplace.
• Determine that an employee is impaired (despite the employee’s status as a registered patient) if the employee manifests specific, articulatable symptoms while working that decrease or diminish performance, as long as the employee receives a reasonable opportunity to contest the basis for the determination before the employer administers discipline.
• Discipline a registered patient that violates a workplace drug policy.
• Discipline a registered patient for failing a drug test, if declining to administer discipline would cause the employer to violate federal law or lose a federal contract or funding.

These rights and protections raise complex issues for employers.

Job Applicants
Employers can ask applicants whether they use any prescribed medication that could prevent the applicant from safely performing the job for which they have applied. If the applicant answers affirmatively, the employer may decline to hire, depending on the essential functions of the position. Because the soundness of such a decision rests heavily on the facts of each case, employers should consult counsel before declining an applicant because of a medical marijuana prescription.

Drug Testing
Until the Illinois courts provide more guidance, employers should proceed with caution when a registered patient tests positive for marijuana on a pre-employment or employee drug screening. Cannabis can remain in the body for several weeks or longer, so a positive drug test does not necessarily mean that an applicant or employee is impaired at the time of the test. Employers may be wise not to reject a registered patient’s application based solely on a positive drug test, unless hiring the applicant presents a public safety risk (e.g., security guard or driver positions). In like manner, employers may want to evaluate drug test results for registered patient employees on a case-by-case basis. Employers may also want to permit the employee to explain or contest the basis of a positive test result.

If the Illinois courts follow the courts of other states, then employers will have more freedom to discipline a registered patient who tests positive for marijuana. Last year, the Colorado Appellate Court addressed an employee’s claim that his employer wrongfully discharged him for testing positive for legal medical marijuana. Although Colorado statute forbids employers from terminating employees for lawful activities conducted during nonworking hours, the court refused to apply the statute because medical marijuana was illegal under federal law. Courts in California, Montana, Maine, and Michigan have reached similar conclusions. Until the Illinois courts take up the issue, employers should exercise caution.

Accommodation
Although 21 states have decriminalized medical marijuana, its use remains illegal under federal law. Several courts have held that federal statutes, including the Americans with Disabilities Act and Family Medical Leave Act, do not protect or allow marijuana use by employees, nor do they require that employers accommodate registered patients. Still, those statutes, and the Illinois Human Rights Act, may require employers to accommodate registered patients’ medical conditions and associated medical treatment.

Next Steps
Employers can expect more guidance on the Illinois medical marijuana law later this year, as the Illinois Departments of Public Health, Agriculture, and Financial and Professional Responsibility must draft regulations governing the patient registry, cultivation facilities, and dispensaries by April 30, 2014. Registering and opening marijuana cultivation centers and dispensaries will take several additional months, which will likely delay the first medical marijuana crop until late 2014 or early 2015.

The law, designed as a four-year pilot program, expires in 2017 unless renewed or extended by Illinois lawmakers. If the state legislature does not renew the law, medical marijuana becomes illegal again on January 1, 2018.

Until the Illinois courts clarify the bounds of the law, employers should take great care in handling medical marijuana issues. While employers may restrict drug possession and use at the workplace, and during work hours, they cannot safely exclude all qualified registered patients from their workforces. Employers should use the coming months to review their drug policies with counsel, so that those policies address complex and nuanced medical marijuana concerns.

For more information on the new Illinois medical marijuana law, contact Jeffrey S. Piell at (312) 715-5216 / jeffrey.piell@quarles.com or William A. Walden at (312) 715-5111 / william.walden@quarles.com.