Illinois Governor Pat Quinn signed the Compassionate Use of Medical Cannabis Pilot Program Act on August 2, of 2013, and as of January 1, 2014, the Act began to establish a four year pilot program in the state that authorizes the cultivation and/ or distribution of medical marijuana to be used by registered qualifying patients. Registered qualifying patients (RQPs) are patients who register with the Illinois Department of Public Health and hold state registration cards because they suffer from select medical conditions that are listed in the statute. The Act includes numerous provisions that focus on the impact of the program on companies who employ registered patients and their caregivers.
Employers, registered qualifying patients, and caregivers should become informed of the effects that this Act can have on workplace drug policies. An employer may not discriminate against an employee based solely on his or her status as a registered qualifying patient, which means that an employer is prohibited from refusing to hire applicants, terminating employees, or taking any other adverse actions against individuals based on the fact that the individuals legally have access to medical cannabis. An exception to this rule, however, is that if failing to take action would result in the employer losing benefits under federal law.
How the Compassionate Use Act Protects Employers
Employers still have certain protections under the Compassionate Use Act, however. These protections include:
- Employers still have the right to require drug testing and enforce zero tolerance policies as well as drug free workplace policies.
- Employers have the right to discipline an employee who is a registered patient for any violations of workplace drug policies.
- If a registered employee fails a drug test, he or she can be disciplined if failing to do so would cause the employer to lose federal funding or be in violation of federal law.
- An employer can discipline an employee who is a registered user if an investigation reveals that the employee showed signs or symptoms of being impaired while at work. The employee, however, has the right to contest the employer’s determination that he or she was impaired at work.
The battle between the legal use of marijuana and employers rights to restrict employee’s usage of marijuana is something that is likely to be repeated in states that have legalized the product either medically or recreationally. While Illinois courts have not yet decided the issue, it has been brought before the courts in Colorado- the first state to bring the dispute to the forefront. In May of 2010, a Colorado employee who is quadriplegic and a registered qualifying patient was fired by his employer after failing a drug test and testing positive for THC (the chemical in marijuana that is responsible for its psychological effects). The man was fired pursuant to his employer’s zero tolerance policy.
The employee filed a lawsuit claiming that by terminating his employment, the employer was violating Colorado’s “lawful activities statute,” which makes it an unfair and discriminatory labor practice to terminate an employee based on the employee’s “lawful” activities outside of work. Colorado Supreme Court rejected the employees claim, however, deciding that while the use of medical marijuana was legal in the state, it remained unlawful under federal law. The employee’s use, therefore, was not considered to be a “lawful activity” as defined by Colorado’s Lawful Activity Statute.
Like Colorado, the state of Illinois has a similar statute called the Lawful Products Statute which prohibits discrimination against employees who use “lawful products” when not at work. The Illinois Department of Labor Administrative Code defines “lawful products” as including, but not limited to:
- All tobacco products
- All alcoholic beverages
- All food products
- All over the counter drugs
- Any drugs lawfully prescribed by the employee’s own physician
Products that directly impair an employee’s performance at work, however, are excluded from the Act.
Applying the Law in Illinois
It is important to note that neither the Lawful Products Statute nor the Administrative Code define medical marijuana specifically as a “lawful product”. The Administrative Code, however, does state that the list is not all inclusive. While a registered employee in Illinois who is terminated for using medical marijuana might claim that he was discriminated against under the Lawful Products Statute, Illinois courts could decide that the term “lawful” is not restricted to state law. This lack of clarity puts both Illinois employers and Illinois employees at risk.
Employers should review their workplace policies that concern drug use and communicate these policies with employees as well as providing instructions to management and supervisors about how to determine the possible impairment of employees while at work to reduce the chances of liability under the Compassionate Use Act.
Should you have any questions about workplace policies or any other law affecting your business or would like to schedule a free initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847)253-8800 or contact us online.
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