Illinois Employment Law Update – December 2015

By Theresa Bresnahan-Coleman on December 17, 2015 | Posted in Blog

LGLJ recently participated in an Illinois Chamber of Commerce Employment Law & Litigation Committee meeting that included representatives from the Illinois Department of Labor (IDOL or “the Department”). New IDOL Director Hugo Chaviano and his staff fielded questions about recent changes to Illinois’ Wage Payment and Collection Act (“the Act”), which took effect before Governor Rauner was elected, and through which IDOL dramatically expanded its power and application of the Act. A list of some of the issues Illinois employers should be aware of with respect to the Act follows below. Many of these issues need further clarification from the Department with respect to how and what employers are required to do and prohibited from doing regarding payment of wages and fringe benefits:

Earned Vacation Policy

Illinois still has “use it or lose it” when it comes to workplace vacation policies. However, new language in the Act has caused confusion on this point – specifically, the addition of a provision that says, “an employer cannot effectuate a forfeiture of earned vacation by a written employment policy or practice of the employer.” When this language is read against other language in the Act which allows employers to have a “use it or lose it” policy, the interplay between the provisions is confusing. IDOL understands that this interplay needs clarification, but has not offered any clear guidance on how employers should approach this new earned vacation provision. As a result, employers should seek advice from counsel regarding any questions they may have about their earned vacation policies. Please contact Tom Weiler or Theresa Bresnahan-Coleman with any questions about this development.

Exempt Employees

Illinois employers must now keep track of hours worked by exempt employees, not just non-exempt. Although this regulation appears to be intended as an evidentiary standard, its plain language suggests that Illinois employers must comply with a new record-keeping burden which the federal Fair Labor Standards Act does not automatically require. The Department is reviewing this regulation, but has not yet offered any guidance for how employers should approach this requirement. Employers should consult with counsel about how to comply with this new record-keeping requirement.

Handbook Disclaimers

Handbooks generally do not create an enforceable employment contract when they include appropriate disclaimers. However, a new definition of “agreement” under the Act muddies the issue. The definition states in one sentence that company policies and policies in a handbook do create an agreement even when there is a disclaimer. In the next sentence, however, the provision seems to contradict itself when it states that although a disclaimer may preclude a contract from being in effect, it does not preclude an agreement between two or more persons about terms in the handbook regarding compensation. This inconsistent language is not in keeping with Illinois law. It is possible that the language’s intent may have been to protect employees who are owed money from their employers, but the Department needs to clarify this. The Department’s staff admitted that the rule as it is currently written is not user-friendly.

Severance Pay

Employers may be deemed to have promised severance pay to an employee if it can be shown that the severance payment is “an established practice” of the employer. But the rule does not define what “an established practice” is, which could create litigation risk for employers over what entitlements are due at time of severance. There could also be potential ERISA concerns, if the severance pay can be viewed as an employee benefit program under ERISA, especially if severance was given to certain employees holding certain positions. Without guidance from the Department, it remains unclear how employers should navigate this development.

Bonus Pay

A change in the Act’s provision about earned bonus pay provides that an earned bonus to a separating or former employee must be paid unless the employer and employee agreed that one of the conditions for the bonus is that the employee must be on the payroll at the time the bonus is paid out. The provision also does not define what an “earned” bonus is. The Department acknowledged that clarification may be needed in the future about what an “earned” bonus is, and when and how this bonus is communicated to an employee.

Deductions and Expenses

A new rule provides that expenses incurred related to services performed to the employer are due to a separating employee as part of final compensation paid. However, the Department has not provided any guidance or mechanism by which such expenses can be included in final compensation, and has not stated if the expenses can be deducted from a separated employee’s final paycheck if the employer and employee had a written agreement in place providing for this. The Department acknowledged that the Act’s language needs to be clarified further on this point.

Seventh Circuit Court of Appeals Decision Stresses Insurers Denying Coverage for Class-Action Liability Cases Should Intervene Early

By Christopher R Dunsing on August 03, 2015 | Posted in Blog

A recent Seventh Circuit Court of Appeals decision emphasizes that an insurer who denies coverage to its insured should take every step to protect its own interests in the liability action as soon as possible, otherwise it may be subjected to a collaborative settlement between the insured and the plaintiff.  In C.E. Design, Ltd. and Paldo Sign and Display Co. v. King Supply Co., LLC, et al., Seventh Circuit Court of Appeals Case No. 12-2930, Judge Posner, writing for the majority, affirmed the district court’s denial of two insurers’ untimely motion to intervene in a class-action Telephone Consumer Protection Act (“TCPA”) case.  A copy of the decision can be found here.  For a more in-depth discussion of the case and its impact, please read Langhenry, Gillen, Lundquist & Johnson, LLC counsel, Chris Dunsing’s discussion of the case with the Bloomberg Bureau of National Affairs, located here.1

The insurers in C.E. Design denied defense and indemnity coverage to their insured under a provision of the policy expressly excluding TCPA claims, and filed a declaratory judgment action.  Almost three years from the filing of the suit, the insured, King Supply Co., LLC, sought the district court’s approval of a collaborative settlement with the plaintiff class for $20 million dollars, representing the full combined limits of the insurer’s policies.  The insurers moved to intervene and challenge the settlement because the declaratory action was still proceeding, their coverage position had not yet been ruled upon and they were at risk of being responsible for said settlement amount.

In affirming the district court’s denial of the insurer’s motion to intervene, Judge Posner noted that “[t]he insurers in this case were right to worry that class counsel in the Telephone Consumer Protection Act class action suit and the defendant in that suit, King Supply, might collude to mulct the insurance company for an excessive recovery, favorable to the class and to class counsel and harmless to the class action defendant.   But they should have begun worrying when the suit was filed rather than almost three years later.”  “The insurers should have foreseen the danger of such a settlement from the outset; had they wished to challenge it on the ground that class counsel and King Supply were conspiring to overcompensate the class, they should have moved to intervene at the outset of the litigation, not nearly three years later, when the settlement had been negotiated and was about to be presented to the district court for approval.”  “At argument their lawyer said they’d decided not to take over the defense because that would have required them to incur legal fees. Yet expending a few hundred thousand dollars on legal fees to defend against a possible loss of $20 million would have been a reasonable investment.”

In the end, Judge Posner’s decision stresses that an insurer denying coverage to its insured should be mindful that the insured has no duty to act in its best interests.  An insurer should move quickly to provide a defense to the insured under a reservation of rights while the declaratory judgment coverage action is being resolved.  Most notably, while Judge Posner’s decision suggests that an insurer can alternatively move to intervene in the liability action and seek to stay those proceedings while the declaratory action is being determined, Judge Hamilton’s concurrence found that an insurer does not have standing for such intervention.  “The district court here correctly rejected that premise. Insurers gain an interest in an underlying tort suit—and require protection from a settlement in that case—if and only if they lose the coverage issue (typically in a separate suit) and are therefore on the hook to indemnify the insured.”

1. Chris Dunsing’s commentary in Bloomberg BNA reproduced with permission from Class Litigation Report, 16 CLASS 811 (July 24, 2015). Copyright 2015 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>

My Co-Defendant Settled a Personal Injury Claim. How Does that Affect Me?

By John Masters on March 03, 2015 | Posted in Blog

When a plaintiff reaches a settlement of a personal injury claim against one of multiple defendants, how does that settlement affect the remaining defendants? The answer will depend on which state’s laws govern. In Illinois, the remaining defendant may recover dollar-for-dollar up to the settlement amount if he otherwise complies with the statutory requirements of the Joint Tortfeasor Contribution Act.  In Indiana, however, the result is controlled by the Indiana Comparative Fault Act. Under the Indiana Comparative Fault Act, defendants may assert an affirmative defense known as a non-party defense and, in order to get a reduction to its damages, the non-settling defendant must plead and prove the amount of fault attributable to that settling co-defendant.

At trial, an Indiana jury would likely be instructed that it will apportion fault to plaintiffs, defendants, and identified non-parties.  The plaintiff’s verdict will be reduced by the percentage of fault attributed to the plaintiff, and also by whatever fault the jury attributes to the non-party. Each defendant will generally be liable severally for only his own percentage of fault. For example, assume a jury found that a personal injury plaintiff suffered $100,000 in damages. Next, the jury would then apportion fault to those listed on the jury verdict form. Assume they found the plaintiff bears 10% of comparative fault, that a non-party who was a settling former co-defendant bears 30% of the fault, and that the sole remaining defendant bears 60%. The remaining defendant would be liable for $60,000—regardless of the amount that his co-defendant previously paid plaintiff to settle.

Significantly, an Indiana defendant may name as a non-party those who were never parties to the case, and even those who cannot be subject to liability to the plaintiff. The jury is not permitted to hear of any immunity defense that the non-party might have.

In Illinois, the rule is different. In Illinois, when a plaintiff settles with one of multiple defendants in good faith, then any judgment entered against the non-settling defendant may be reduced dollar-for-dollar to the extent of the amount stated in the settlement release.

The effect multiple defendants have on litigation depends upon your state’s controlling law. In Indiana, a defendant has the opportunity to plead and prove the fault of settling co-defendants, as well as those who were never parties, as a means to reduce his overall potential judgment. In Illinois, however, the jury can only apportion fault to parties to the case. The Illinois defendant, however, gets the clarity of knowing his set-off amount prior to trial.

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The Verdict Is In: Six Person Jury Is the New Rule for Civil Trials in Illinois

By Andy Stuart on February 03, 2015 | Posted in Blog

12863116274_144d80df64_zEffective June 1, 2015, all civil cases in Illinois will be tried by a jury of six, halving the longstanding tradition of deciding civil lawsuits with a twelve-person jury. Criminal trials will still be decided by a jury of twelve.

Senate Bill 307 (SB 307), now Public Act 98-1132 cuts the number of jurors in all civil cases from twelve to six and increases the minimum payment for jury service to $25 for the first day and $50 for each subsequent day. In addition, for all cases filed prior to the effective date of June 1, 2015, a party that has already demanded and paid for a jury of twelve, will still be entitled to a twelve-person jury.

Reaction to the new law is definitely mixed, with approval split along party lines–and between the plaintiff and defense bar. The bill was widely supported by the Illinois Association of Trial Lawyers who claim that the change will result in reduced costs and time savings to litigants and increased courtroom efficiency, all while encouraging jury service by increasing jury pay. Critics argue that the perceived benefits are minimal – particularly in light of the trade off in halving the numbers in a civil defendant’s “jury of their peers.” However, the six-person rule is not unprecedented, with federal courts and many states employing six-person juries in civil matters.

As a populist measure, most agree that the $17.20 paycheck Cook County jurors (jurors in other counties receive even less) receive for each day of service does little to offset the lost time and inconvenience of appearing for jury duty. But the question remains – is the new provision of $25 per day for the first day and $50 per day if selected to sit on the jury really a fair measure of jurors’ time and service? Probably not. The pay raise is definitely an improvement, but the people who complain that they cannot afford the lost time of jury service are not likely to be swayed by the increase.

Critics of the change also question whether the new law will save court time and costs. Criminal trials will still be tried by a jury of twelve. By the time a significant civil case reaches trial, the court time saved in selecting six jurors instead of twelve is unlikely to be significant to most litigants, particularly defendants who are losing the opportunity to present their case to an additional six people. Others claim that the new law will result in a lack of diversity of backgrounds and viewpoints on the jury. Conventional wisdom suggests that larger juries tend to moderate the size of jury awards. A smaller jury is more likely to be dominated by a strong personality, whereas there is more room for debate in a larger group where it is less likely that a single juror or small faction will control the discussion. Across the board, it is easier for a plaintiff to convince a jury of six than a jury of twelve. Time will tell if the ratio of plaintiff/defense jury verdicts changes after implementation of the new law.

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Dueling Dismissals: Voluntary Dismissal vs. Motion to Dismiss

By Nick Poteres on January 22, 2015 | Posted in Blog

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In years past, plaintiffs have strategically used voluntary dismissals to avoid dispositive motions, gain time to amend pleadings, or even circumvent statutes of limitations. It was not uncommon for plaintiffs to respond to a motion to dismiss by voluntarily dismissing the defendant until they built a better case. In response to these practices, the Illinois legislature enacted the most recent version of 735 ILCS 5/2-1009 to govern voluntary dismissals.

Section (a) explains that a plaintiff may at any time before trial or hearing, with notice to all parties and upon payment of costs, dismiss the action without prejudice. Section (b), however, places restrictions on the dismissal. Under Section (b), a court may decide a motion that has been filed prior to a motion for voluntary dismissal if that motion could result in the final disposition of the case.

The key language of section (b) is that the previously filed motion to dismiss “could result in the final disposition of the case.” The trial court has discretion to hear and decide a potentially dispositive motion before ruling on a plaintiff’s motion for voluntary dismissal.

But defense attorneys must be mindful that a case may not be final despite the granting of a motion to dismiss. In Smith v. Cent. Ill. Reg’l Airport, the circuit court granted defendants’ previously filed motion to dismiss, but allowed the plaintiff sixty days to amend the complaint. Rather than amend, plaintiff filed a voluntary dismissal. The trial court granted the voluntary dismissal, and defendant appealed. The Illinois Supreme Court upheld the trial court’s ruling. Granting defendant’s motion to dismiss was not a final order because plaintiff was allowed time to amend the complaint.

In order to avoid a similar situation, there are a couple practices that defense attorneys should follow. First, the language in motions to dismiss and dismissal orders should clearly state that the plaintiff cannot prove its case under any circumstance and that the dismissal is the final order of the court. Second, should the court grant time for the plaintiff to amend his complaint, defense counsel should make sure there is a concrete deadline. When that deadline passes, defense counsel should petition the court for a final order, eliminating any possibility of confusion or ambiguity.  In the end, courts are more willing to uphold the intention of the dismissal statute as long as the attorneys take the appropriate measures.

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Illinois Supreme Court Holds that Plaintiff is not so Easily Distracted in New Open and Obvious Case

By Mike Radak on January 20, 2015 | Posted in Blog

12605126723_0d8f1c9f61_zA common fact scenario in a premises liability case is the plaintiff who is injured tripping over a large box, pallet, basket, display, etc. while shopping at the defendant’s retail store. When a defense attorney gets a case like this, the first thing that should come to mind is: this is “open and obvious.” The client will almost always inquire about our chances of prevailing on a motion for summary judgment. Until recently, our response has typically been that there is a strong argument that the condition was open and obvious, but all the plaintiff had to say to defeat such a motion was that he was “distracted.” The distraction could be just about anything related to the business—from all the pretty merchandise he was looking to buy from the defendant’s store, to a crying baby in the cart next to him, to the employees stocking shelves next to him—and chances are good that the court would hold the distraction exception to apply and the case would proceed to a jury. It has been a difficult exception for a defendant business to overcome ever since Ward v. K-Mart, where the Court held that a plaintiff who walked into a large concrete post was distracted by the large item he was carrying.

But now, promisingly, the Illinois Supreme Court has recently released an opinion regarding the open and obvious doctrine and the limits of the distraction exception. On September 18, 2014, the Supreme Court issued its opinion in Bruns v. The City of Centralia, reversing the appellate court and upholding the trial court’s order granting summary judgment in favor of the defendant.

In Bruns, the plaintiff tripped on a crack in the sidewalk while on her way to a scheduled eye appointment. The parties agreed that the sidewalk defect was open and obvious, but disagreed as to the applicability of the distraction exception. The “distraction exception” applies where the possessor of land has reason to expect that the invitee’s attention may be distracted so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. In this case, the only distraction identified by plaintiff was that her attention was fixed on the door and steps of the clinic. The Supreme Court concluded that the mere fact of looking elsewhere does not constitute a distraction:

We note that the concept of foreseeability is not boundless. That something “might conceivably occur,” does not make it foreseeable. . . .Rather, something is foreseeable only if it is “objectively reasonable to expect.” In the absence of evidence of an actual distraction, we disagree with plaintiff that it was objectively reasonable for the City to expect that a pedestrian, generally exercising reasonable care for her own safety, would look elsewhere and fail to avoid the risk of injury from an open and obvious sidewalk defect. The plaintiff’s position is contrary to the very essence of the open and obvious rule: because the risks are obvious, the defendant “’could not reasonably be expected to anticipate that people will fail to protect themselves from any danger posed by the condition.’” . . . Were we to conclude, as plaintiff does, that simply looking elsewhere constitutes a legal distraction, then the open and obvious rule would be upended and the distraction exception would swallow the rule.

This is a favorable ruling from a defense perspective, as the court finally appears to be limiting the “distraction exception” so it can no longer be used to automatically overcome the open and obvious defense. We hope to test the applicability and bounds of the Bruns case as a defense with our future and current cases involving the open and obvious doctrine.

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Illinois Employers Now Prohibited from Inquiring into the Criminal History of an Applicant Until After They Are Deemed Qualified and Selected for an Interview

By Matt Andris on December 31, 2014 | Posted in Blog

5621810815_185b86a50d_zThe New Year in Illinois will bring several changes to Illinois law, including some significant changes with respect to the pre-employment criminal background screening of applicants by prospective employers. As we covered in a previous blog post, an employer is already prohibited from inquiring into or considering the fact that an applicant was arrested or had an expunged criminal history as a basis for most employment decisions.

However, on January 1, 2015, the Job Opportunities for Qualified Applicants Act becomes law in Illinois. The Act prohibits employers from inquiring into the criminal history of an applicant until the applicant has been determined qualified for the position, selected for an interview, or if there is no interview, until a conditional offer of employment is made to the applicant. The Act has several specific exceptions for when it is acceptable to inquire into an applicant’s criminal background prior to an interview or offer of employment, which include employers that are required by state or federal law to exclude certain applicants with criminal convictions, or employers who hire individuals under the Emergency Medical Services Systems Act. The Act applies to every private sector employer (and their agents) that employs fifteen or more employees in Illinois in the current or preceding calendar year.

The Illinois Department of Labor will enforce the Act. The Act tasks the Department of Labor to investigate any alleged violations of the Act and impose civil penalties of those employers found to be in violation of the law. Penalties for violation of the Act range from a written warning for a first violation to fines of up to $1,500 for every thirty (30) days that a violation is not brought into compliance with the Act.

The Act does not prohibit an employer from disqualifying applicants based upon criminal convictions. It simply addresses the timing with which an employer may inquire into an applicant’s criminal conviction background. Therefore, the biggest practical change most employers will need to make will be to change their job application and pre-employment screening to eliminate any request for a prior criminal conviction.

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In a Retaliatory Discharge Case, It Really is All About the Motive

By Tom Weiler on December 18, 2014 | Posted in Blog

The Illinois Supreme Court recently reaffirmed that it really is all about the motive in a retaliatory discharge case. On December 4, 2014, the court in Michael v. Precision Alliance Group, LLC held that the three-part burden of proof analysis established in federal courts is still the law of the land. Once a former employee establishes that he was discharged, he must establish that the discharge was “in retaliation” for the employee’s engaging in a protected activity (in Michael it was “whistleblowing”—the “causation” element).

4474670666_6369e813cf_zThe circuit court judge found that there was a “causal nexus” between the firing and the whistleblowing, but the supreme court ruled that a “causal nexus” was not the equivalent of actual causation. Once the employer came up with a non-pretextual explanation for the firing, and the finder of fact believed the explanation, the plaintiff failed to establish causation. “[T]he ultimate issue is the employer’s motive in discharging the employee.” The circuit court judge, despite finding that the firings came shortly after the company was reported for selling underweight bags of seed, found (and more important, believed) that the reasons the company gave for the employees’ firings were legitimate.

The court in upholding the employer’s decision, also re-affirmed that Illinois is still an at-will employment state. And it noted that retaliatory discharge claims have been allowed in only two settings: discharge for filing (or in anticipation of filing) a workers compensation claim or in retaliation for reporting of illegal conduct (“whistleblowing”).

Terminations are always difficult and more often they are being challenged, whether based on alleged discrimination or allegations of retaliatory conduct. It is more important than ever for employers to make sure their reasons for letting employees go are well-documented.

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The unfortunate limitations of some accident surveillance videos

By Kyle Lewis on December 04, 2014 | Posted in Blog

When a new case comes in one of my first questions for the adjuster or business owner is whether surveillance video of the accident is available. There is usually no easier way to uncover the truth behind the allegations in the plaintiff’s complaint. But frequently (and unfortunately), even with surveillance video, the truth of what happened is not definitively revealed—at least not to the point where it completely undercuts opposing counsel’s case. Let’s look at a few reasons why.

Technical limitations

Even with ever-improving technology, often surveillance video of an accident is simply not very good. This is often because the quality of the picture is poor. Sometimes the video is too grainy or the system does not take actual video but rather second-by-second still shots that are then spliced together. Another issue is camera placement that either cuts off part of the scene of the accident or is too far away to be definitive. These technical limitations often result in an inability to determine the exact cause of an accident or nature of an alleged defect, especially with trips/slips and fall cases. While the video is often quite helpful in the defense of a case (and is usually better than nothing), the technical limitations of the equipment at times allow opposing counsel to continue to make arguments as to why the defendant should be liable, no matter how implausible.

Summary judgment standards

Which brings me to the next issue—it would seem that a summary judgment motion supported by surveillance video of an accident would be a slam dunk for the defense. And it can be. But since summary judgment requires a determination by the judge that no material question of fact exists between the parties, technical limitations of surveillance equipment that allow opposing counsel to continue to argue that the facts are contrary to what appears on the surveillance video (and contrary to the defense argument) can work to persuade a judge to accept that issues of fact still exist, which must be ruled upon by a jury.

4235430303_bbc37aa17b_zThis can happen even when the video is of good quality and shows the moment of the accident. For instance, where proper lighting is at issue, we have seen judges accept plaintiff’s argument that there is an issue of fact of how well lit a space really was when the plaintiff simply testifies that he/she remembered the area being darker than what is shown on the video—even if there is no argument by the plaintiff that the video has somehow been altered to lighten the picture. Additionally, the length of a surveillance video can also affect whether summary judgment is granted, especially in cases where the defense argues that not enough time elapsed for the business to have had sufficient notice of a spill on the floor that caused the plaintiff’s injury. If the video is too short, it runs the risk of either not being conclusive on the notice issue because it may not show how long the spill was on the floor prior to the accident. If the video is too long, it may show that the spill was on the floor for a long enough period of time that the defense cannot argue in the good faith that there was not constructive notice, and therefore no liability.

To some extent, it is a matter of luck

Ultimately, there is not much that can be done in practice so that surveillance video always helps to favorably resolve a case. Of course, it is likely impractical for most business owners to install state-of-the-art surveillance systems and cost prohibitive for some business to install any sort of surveillance system whatsoever. The video is what it is, and good attorneys on both sides will use it to bolster their case. Sometimes it is simply a matter of luck how well the accident was captured on video.  However, by keeping the above issues in mind, adjusters and business owners can more effectively capture and preserve video that will allow for the most efficient resolution of new claims.

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New Illinois medical marijuana law: what employers need to know

By Theresa Bresnahan-Coleman on November 20, 2014 | Posted in Blog

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.

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