New Illinois medical marijuana law: what employers need to know

On January 1, 2014, Illinois joined the ranks of nearly half of the United States which allow the medical use of marijuana when the Compassionate Use of Medical Cannabis Pilot Program Act went into effect. Illinois’ medical marijuana law legalizes the use of marijuana for medical, not recreational, purposes, and will be effective through 2017 as part of a pilot program. Not everyone in the state of Illinois will be able to use marijuana – the Act contains several restrictions on who may legally use cannabis for medical purposes that make Illinois’ medical marijuana law one of the most restrictive in the nation. Several state administrative agencies recently issued rules governing the implementation and execution of the Act, and Illinois citizens are now in the process of submitting applications to become registered users under the Act. It is likely that patients will be able to start using medical marijuana in early 2015, and employers will undoubtedly face questions and requests (if not demands) from employees who qualify for use under the Act. It will be crucial for employers to consult with their legal counsel whenever questions arise about how the Act applies to their business, as much of the law will need to be interpreted as it is implemented.

Who can use medical marijuana and for what diseases?

2298921212_117fc534a9_oThe Act’s self-stated purpose is “to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties, and property forfeiture if the patients engage in the medical use of cannabis.” To qualify as a patient who can use medical marijuana, the individual must be diagnosed by a medical doctor or osteopathic doctor (not a dentist), who has a controlled substances license under Article III of the Illinois Controlled Substances Act, with one or more “debilitating diseases” specifically identified by the Act. These diseases include cancer, glaucoma, HIV, AIDS, Hepatitis-C, amyotrophic lateral sclerosis, Crohn’s disease, rheumatoid arthritis, multiple sclerosis, Parkinson’s, and Lupus. Generalized, unspecified pain is not included in the list of debilitating diseases. The patient must have a bona fide physician-patient relationship with the doctor providing the diagnosis of the debilitating disease and be under that doctor’s care for treatment of the disease. The doctor must provide written certification of the disease, that the patient is likely to receive therapeutic benefit from the medical use of cannabis to treat the disease or its symptoms, and that the doctor is providing treatment for the debilitating medical condition. Once the individual has received the physician’s written certification, the individual must register with the Department of Public Health and be issued a valid registry identification card by the Department before he or she can purchase marijuana from a state-licensed cultivation center.

How are employers affected under the new law?

Employers of qualifying patients must walk a fine line to ensure they do not run afoul of the new state law while maintaining efficient, safe workplaces. They also must make sure they do not engage in any practices which would violate federal law. The Act presents a tricky situation because cannabis use, medical or not, is illegal under federal law. However, the Department of Justice recently indicated that for now, it will focus its anti-marijuana efforts on eight enforcement initiatives, which include preventing marijuana distribution to minors, preventing state-authorized marijuana activity from being used as a cover for trafficking of other illegal drugs, and preventing violence and the use of firearms in the cultivation and distribution of marijuana. The list of initiatives does not include prosecution for use of marijuana for medical purposes; rather, the Justice Department will defer to state and local authorities for areas outside of the Department’s identified areas of enforcement. While this guidance may mean Illinois employers can breathe a little easier about their employees’ use of medical marijuana and the employers’ own compliance with federal law, employers must still tread cautiously with how they treat their employees who are qualifying patients.

Discrimination prohibited. Registered patients are protected under the Act from “arrest, prosecution, or denial of any right or privilege, including but not limited to civil penalty or disciplinary action by an occupational or professional licensing board, for the medical use of cannabis in accordance with this Act.” Indeed, there is a rebuttable presumption that a registered qualifying patient is engaged in the medical use of cannabis if he or she is in possession of a valid registry identification card and is in possession of an amount of cannabis that does not exceed 2.5 ounces in a 14-day period. Certain exceptions apply, however – for example, an individual can be penalized for undertaking any task under the influence of cannabis when doing so would constitute negligence, or professional malpractice or misconduct. An individual also cannot possess or use cannabis in a school bus; on the grounds of any preschool, primary, or secondary school; or in a daycare or correctional facility. Further, an individual can be penalized for smoking marijuana in a public place where he or she could reasonably be observed by others, in a healthcare facility, or any other place where smoking is prohibited under the Smoke Free Illinois Act. In addition, certain professions cannot use medical marijuana, including active duty law enforcement officers, correctional officers and probation officers, firefighters, and those who have a school bus permit or commercial driver’s license.

The Act forbids an employer from penalizing an employee solely for his or her status as a qualifying patient. However, the employer may penalize the employee if failing to do so would put the employer in violation of federal law. The most obvious example of such a situation is an employer who is regulated by the federal Department of Transportation. In addition, nothing in the Act forbids a landlord from prohibiting the smoking of cannabis on its premises. And, importantly, the Act does not prohibit a private business from restricting or prohibiting the use of marijuana on its property.

Zero-tolerance policies allowed. The Act does not prohibit an employer from adopting reasonable regulations concerning the consumption, storage, or timekeeping requirements for qualifying patients related to the use of medical marijuana. It also does not prohibit an employer from enforcing a policy on drug testing, zero-tolerance, or a drug-free workplace, so long as the policy is applied in a “nondiscriminatory manner.” Because this caveat does not provide clear direction to employers for how to apply their drug policies, employers should contact their legal counsel for assistance, especially if a qualifying patient fails a drug test.

Employers may discipline a qualifying patient-employee who appears to be impaired while working and suffers decreased performance capabilities. However, the Act provides that the employee must be given a reasonable opportunity to contest the basis of the determination that he or she was impaired. Again, before taking any disciplinary action, employers should consult with legal counsel for advice on how to appropriately administer discipline.

In what other areas may employers be affected?

In addition to questions about how not to discriminate against qualified patients and how to administer drug testing and work policies on drug use, Illinois employers may encounter additional concerns as the Act is implemented. For example, the Act does not specifically state whether employers must provide worker’s compensation payment for the purchase of medical marijuana to an employee who is a qualifying patient and who has a legitimate, related worker’s compensation claim. But employers should take note that a New Mexico appellate court recently held that under that state’s medical marijuana law, New Mexico employers must reimburse employees for costs associated with the purchase of medical marijuana in the worker’s compensation context. Similarly, the Act does not specifically state whether qualifying patients who are terminated due to a violation of an employer’s drug-free workplace policy are entitled to unemployment insurance benefits. A Michigan appellate court recently held that even if an employee was legally terminated due to a violation of an employer’s drug policy, the employer may nonetheless be responsible for paying unemployment insurance benefits under Michigan’s medical marijuana law if the employee was a qualified patient for medical marijuana in that state. Because Illinois’ law is brand new, it is unknown how these issues will play out when they arise (as they undoubtedly will). Employers will need to confer with counsel when confronted with these issues in order to determine the best course of action.

Bottom line

Given the uncertainty of how Illinois’ medical marijuana law will be implemented once the first patients begin using cannabis to treat their debilitating diseases, employers should consult with their legal counsel before taking any steps in reaction to the new law. Whether employers need to revise their workplace drug policy, are dealing with an employee who is a qualifying patient but who appears to be impaired on the job, or are considering what to do about a claim for worker’s compensation payments for cannabis, they should make sure they have discussed their situation with employment counsel so that they do not violate the new law and can continue to operate their business in harmony with the Act.

Image by Torben Hansen licensed under CC BY 2.0