On January 1, 2014, usage of marijuana for medicinal purposes will become legal in Illinois. The Compassionate Use of Medical Cannabis Pilot Program Act creates a four-year pilot program that will allow patients diagnosed with one of a list of specific, debilitating medical conditions to use medicinal marijuana. The purpose of the act is to protect patients with such debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution for engaging in the medical use of cannabis. Qualifying individuals, designated as “registered qualified patients,” will be issued a Registry Identification Card by the Department of Public Health.  

So what does this mean for Illinois employers?  

The act contains specific provisions regarding the workplace that attempt to balance the interests of employers and employees. On the plus side for employers, the act’s language strives to minimize its impact on existing workplace policies and liabilities. Thus, an employer is not prohibited from: 

• Restricting or prohibiting the medical use or possession of prescribed marijuana on its property. 

• Disciplining an employee who is a registered qualified patient if that employee violates a properly constructed work-place drug policy. 

• Adopting reasonable rules relating to the use of medical marijuana such as consumption, storage, or timekeeping requirements.

• Enforcing a policy concerning drug testing, zero-tolerance, or a drug-free work place, including disciplining an employee who is a registered qualified patient 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.

Considering a registered qualified patient to be impaired when he or she manifests specific, articulable symptoms while working that decrease or lessen his or her performance of the duties or tasks of the employee’s job position, provided that if the employer disciplines the individual, it must first provide a reasonable opportunity to contest the basis of the determination.

In addition to these safeguards, the act specifies that it 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 registered qualifying patient (i) used or possessed cannabis while on the employer’s premises or during the hours of employment, or (ii) 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.

On the other hand, the act does prohibit an employer from:

• Penalizing employees for their status as patients who are qualified and registered to purchase medical marijuana, unless failing to do so would put the employer in violation of federal law.

• Applying a policy concerning drug testing, zero-tolerance, or a drug-free work place in a discriminatory manner toward registered qualified patients.

Despite the statute’s attempt to balance the interests of employers in maintaining a functioning workplace against employees’ rights to use marijuana as part of their medical care, there are areas where these competing interests may clash and where the statute may not provide sufficient clarity or guidance. For example:

• An Illinois employer may have to consider accommodating an employee whose medical condition has led to a recommendation of medical marijuana use by virtue of the interplay of the act and the Illinois Human Rights Act and similar laws in Illinois that protect the disabled in the workplace. Since medical marijuana remains an illegal drug under federal law, however, its use — and therefore any duty to accommodate its use — would not be protected under the federal Americans with Disabilities Act. 

• Although the act says employers may continue to enforce drug testing policies and may discipline registered qualifying patients who are impaired at work, the act is not clear as to whether an employer may discipline a registered qualifying patient who is not impaired at work and receives a positive drug test result. It could be argued that the purpose of the act would be undermined if the employer could do so, even though the employer would be applying its policy in a nondiscriminatory manner.  

These and other questions may be answered, or at least further clarification may be supplied, when the expected applicable employment regulations interpreting the act’s requirements are released. In the meantime, Illinois employers should be reviewing their employee handbooks and drug testing policies to ensure conformance with the requirements of this new law. Additionally, supervisors and human resources personnel should be alerted to the requirements of the new law.