The Illinois Compassionate Use of Medical Cannabis Pilot Program Act (Act), 410 ILCS 130/1 et seq., presents a series of challenges for employers who want to maintain a drug free workplace. While Illinois courts have not yet addressed the issue of whether an employer may forbid medicinal use of cannabis, courts in other states have done so, and these decisions have generally sided with employers. Based on the language of the Illinois Act and the decisions of courts in other states, it appears likely that employers in Illinois may continue to maintain zero tolerance policies prohibiting the use of all illegal drugs, including medicinal cannabis, regardless of whether the employee uses the drugs at work or during nonworking hours. As explained in more detail below, employers can best protect themselves by updating their drug policies, properly disseminating them to employees, and enforcing them equally throughout the workforce.

Language of the Illinois Statute

The Act makes legal the possession of up to 2.5 ounces of cannabis for medicinal use by registered qualifying patients. A "qualifying patient" is defined as a person who has been diagnosed by a physician as having a debilitating medical condition.

Section 40(a)(1) of the Act prohibits employers, among others, from refusing to hire prospective employees based solely on that candidate's status as a registered qualifying patient unless doing so would put them in violation of federal law. It states:

No school, employer, or landlord may refuse to enroll or lease to, or otherwise penalize, a person solely for his or her status as a registered qualifying patient or a registered designated caregiver. 410 ILCS 130/40(a).

The Act further provides that an employer is not required to employ a qualifying registered card holder if the employer faces potential monetary or licensing-related issues under federal law:

unless failing to do so would put the school, employer, or landlord in violation of federal law or unless failing to do so would cause it to lose a monetary or licensing-related benefit under federal law or rules. This does not prevent a landlord from prohibiting the smoking of cannabis on the premises. Id.

Under Section 50 of the Act, an employer may adopt and enforce reasonable regulations regarding the consumption, storage and timekeeping requirements of an employee who is permitted to use medicinal cannabis. This section also expressly allows an employer to enforce a zero tolerance policy, drug testingand a drug free workplace policy provided that these policies are enforced in a nondiscriminatory manner.

Although the Act contains express language that can help to guide a weary employer through its regulations, it leaves a number of important questions unanswered. For example, if an employee fails a drug test but the employee is a qualifying registered card holder under Illinois law, may the employer terminate that employee? Some guidance can be found from examining how courts from other states where medicinal—and sometimes recreational—use of cannabis is legal under state law.

Court Decisions from Other States

One of the first decisions dealing with the intersection of a state medicinal cannabis law and employment arose out of the California case of Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920 (2008).Ross upheld an employer's right to refuse employment to an applicant who tested positive for marijuana which he was legally entitled to use.

The case was brought by a RagingWire job applicant, Gary Ross, who suffered from a lower back strain and muscle spasms  as a result of injuries he sustained while serving in the military. After failing to obtain relief from pain through traditional medications, Ross began using cannabis on his physician's recommendation pursuant to the California Compassionate Use Act. Ross was offered a job expressly on the condition that he pass a drug test. When Ross tested positive for cannabis, the company withdrew its offer of employment. Ross sued the company, alleging RagingWire discharged him in violation of California's Fair Employment and Housing Act and also failed to make reasonable accommodations for his medicinal cannabis use.

In siding with the employer, the California court acknowledged an employer may be required to accommodate an employee's legal use of drugs, but this was not a legal use, as marijuana was (and still is) illegal under federal law. The court also relied on the fact that the Compassionate Use Act did not "eliminate marijuana's potential for abuse or the employer's legitimate interest in whether an employee uses the drug."

This decision was not unanimous, however, and the dissenting justices arguing the majority "disrespect[ed] the will of California voters who, when they enacted the Compassionate Use Act, surely never intended that persons who availed themselves of its provisions would thereby disqualify themselves from employment." Ross, 42 Cal. 4th at 934 (emphasis added). The dissent also complained that the majority's opinion "leaves many Californians with serious illnesses just two options: continue receiving the benefits of marijuana use … and become unemployed … or continue in their employment, discontinue marijuana treatment, and try to endure their chronic pain or other condition for which marijuana may provide the only relief.' Id. at 936.

Similarly, in Swaw v. Safeway, Inc., No. C15-939, 2015 U.S. Dist. LEXIS 159761 (W.D. Wash. Nov. 20, 2015), a federal court in Washington State held that an employee who was terminated for testing positive for cannabis after a workplace accident could not sue his employer, even though he was permitted under state law to use medicinal cannabis. The employer's policy banned controlled substances, including cannabis, and therefore the employee was in violation of the employer's policy. Similar to the language of the Illinois Act, Washington's medicinal cannabis statute permits employers to implement a drug free workplace, even if the employee's use of cannabis was offsite and not during work hours. Since the plaintiff agreed to adhere to that policy as a term of his employment, the employer was within its right to terminate him for violating the policy.

What if an employee uses medicinal cannabis to treat a disability as defined under the Americans With Disabilities Act, 42 U.S.C § 12101, et seq? Does terminating an employee for violation of a zero tolerance policy mean the employer has discriminated against that employee on the basis of a disability?

At least one case has addressed that issue and determined the answer to be in the negative. In James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012), the plaintiffs, severely disabled Costa Mesa, California residents and medicinal cannabis patients, sued the city for passing an ordinance that banned medicinal cannabis dispensaries within the city limits. The plaintiffs alleged that the ordinance violated Title II of the ADA. The Court of Appeals for the Ninth Circuit rejected the argument and affirmed the lower court's ruling, noting that because the ADA includes cannabis use under its illegal drug exclusion, medicinal cannabis use, even if it is permitted by state law and/or authorized by a medical professional, is not protected by Title II of the ADA.

One other disharmony arises from the interplay between the Act and the Right to Privacy in the Workplace Act which prohibits an employer from refusing to hire, discharging or otherwise penalizing an employee for use of lawful products during off hours. Since cannabis can be prescribed legally, it is a lawful product under state law; does it also have to be lawful under federal law? In Colorado, the answer is yes.

In Coats v. Dish Network, LLC, 2015 CO 44, the Colorado Supreme Court upheld the plaintiff's termination because he used cannabis in violation of his employer's drug policy even though cannabis is and was legal under state law. The plaintiff, a quadriplegic, was licensed to legally possess and consume medicinal cannabis. The plaintiff used cannabis only within the limits of his license and never on his employer's premises. He was never under the influence at work. The plaintiff relied on Colorado's employment privacy laws which were designed to keep an employee's lawful activities performed outside the workplace and during nonworking hours out of the employer's considerations.

Colorado's lawful activity statute is similar to Illinois's Right to Workplace Privacy Act; it prohibits an employer from taking negative action towards an employee for engaging in any lawful activity off the employer's premises during nonworking hours. Despite the plaintiff's argument that cannabis was legal under state law, the court found that because cannabis remained illegal under federal law it was not a "lawful activity" under Colorado's lawful activities statute.

Predicting Illinois Law

In Illinois, an employer may maintain a "zero tolerance" policy, implement drug testing, and maintain a drug free workplace. Both California and Washington courts relied on such employment policies to find that employers acted legally in terminating employees for failing workplace administered drug tests. These results may drive Illinois' decisions on this subject. Further, the similarity in language in the medicinal cannabis statute in Washington and the Act should be persuasive once our courts have a chance to confront this issue.

Additionally, as in California, because of the ADA's illegal drug exclusion, it is unlikely that an Illinois employee will possess a cause of action under the ADA.

Finally, the language of the Act, which allows an employer to mandate a zero tolerance policy and a drug free workplace, likely means that the use of "lawful products" under the Workplace Act will not shield an employee from termination or other penalty for violating such policies.

As more employees become registered qualifying patients, employers will be confronted with the reality of balancing workplace drug policies with an employee's right to consume legally prescribed substances. The most important considerations for employers in Illinois are to implement and maintain clearly-articulated and nondiscriminatory written workplace policies which address use of cannabis by employees and to enforce those policies in a consistent and uniform fashion. By implementing clear policies, disseminating them to employees, and enforcing them equally, employers can best protect themselves from potential liability.