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With the passage of the Compassionate Use of Medical Cannabis Pilot Program Act (“Cannabis Act”), employers will shortly confront a new, potentially troublesome workplace issue: legalized marijuana for medicinal purposes.  Under the Cannabis Act, registered and qualified medical marijuana patients cannot be discriminated against by employers in the workplace or during the application or promotion process solely based on their medical status. The new law, which is a pilot program commencing on January 1, 2014 and continuing for four years when it will be automatically repealed, makes Illinois one of almost two dozen states to adopt such a medical marijuana law.

 

The Cannabis Act specifically allows patients diagnosed with one of 42 specific, debilitating medical conditions to purchase up to 2.5 ounces of marijuana every 14 days from a state licensed dispensary. Qualifying individuals must register with the Illinois Department of Public Health for legal status as a medical marijuana patient and receive a Registry Identification Card.

 

Substantive Provisions of the Cannabis Act Relating to Employers

While the Cannabis Act creates numerous uncertainties for employers, certain things are clear. If employers have employees on their workforce that have established themselves as registered and qualified patients (“RQP”), the Cannabis Act:

  • Allows employers to adopt "reasonable regulations" concerning the consumption, storage or timekeeping requirements for RQPs related to the use of medical cannabis;
  • Allows employers  to enforce policies concerning drug testing, zero-tolerance or drug free workplaces, provided such policies are applied in a non-discriminatory manner;
  • Does not limit employers from disciplining an employee who is an RQP for violating a workplace drug policy;
  • Does not limit employers' ability to discipline an employee who is an RQP for failing a drug test if failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or funding;
  • Allows employers to consider an RQP to be impaired when the employee manifests specific, articulable symptoms, including speech, dexterity, agility, and demeanor,  while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, provided that if the employer disciplines the RQP, it must provide a reasonable opportunity to contest the basis of the determination;
  • Does not create a defense for a third party who fails a drug test; and
  • Does not create or imply a cause of action for any person against an employer for:
    • actions based on the employer’s good faith belief that a RQP used or possessed cannabis while on the employer’s premises or during the hours of employment;
    • actions based on the employer’s good faith belief that a RQP was impaired while working on the employer’s premises during the hours of employment; or
    • actions based on injury or loss to a third party if the employer neither knew nor had reasons to know that the employee was impaired.

 

 

What Should Employers Be Doing in Preparation for the New Law?

Despite legislators’ remarks that the law will not impact employers’ application of their drug-free workplace policies, in the absence of regulatory guidance, the Cannabis Act leaves employers with a host of questions to answer, including: What happens when an employee with a prescription for medical marijuana fails a random drug test? Given that the Cannabis Act prohibits employers from discriminating against an employee simply because the employee is an RQP, employers should carefully consider whether to include cannabis in random drug testing regimes, particularly since such tests do not allow the employer to identify when specifically the cannabis was consumed — i.e., during unpermitted workplace time or during permitted non-working time.

 

Additionally, employment policies that cover employees in multiple states may require the inclusion of state-specific information relating to the new law’s impact on Illinois-based employees. Similar information may be required to tailor specific language for employees in other states that have their own medical cannabis regulations. Care will need to be taken to ensure that employees clearly understand the impact of their state-specific regulations.

 

Prudent employers in Illinois should revisit their employee handbooks and drug testing policies immediately to address these issues. Additionally, employers should train their supervisors in the requirements of the new law and in determining whether an employee is impaired. Any dispute over an adverse action based on impairment will hinge on the employer being able to articulate a good faith reason for its conclusions.

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