Illinois Medical Marijuana Program: Guide for Employers

 Posted on August 13, 2015 in Employment Law

Illinois’ Compassionate Use of Medical Cannabis Pilot Program Act (Act) went into effect January 2014, making Illinois the 21st state to allow the use of medical marijuana. The Act permits Illinois residents who have a qualifying medical condition, or a caregiver of an individual who has a qualifying medical condition, to register with the state for receipt of a medical marijuana card. Registration authorizes the cardholder to obtain up to 2.5 ounces of marijuana from a dispensary every 14 days. But what impact does the Act have on employers?

Employer Rights under the Illinois Medical Marijuana Pilot Program

The Act prohibits employers from discriminating or penalizing any employee due to his status as a medical marijuana card holder. However, that does not give qualifying individuals a license to come to work under the influence. Under the Act, Illinois employers are permitted to:

• Adopt reasonable regulations concerning the consumption, storage, or timekeeping requirements, as related to the use of medical marijuana;
• Enforce policies regarding drug testing, zero-tolerance, and maintaining a drug-free workplace, provided such policies are applied in a non-discriminatory manner; and
• Discipline any employee who violates a workplace drug policy, even though he or she is a registered qualifying patient.

This means that employers can restrict the use of medical marijuana on employee property, maintain a drug-free workplace, and require any employee, even those with a medical marijuana card, to undergo routine drug testing, so long as the workplace policies are not implemented for the sole purpose of targeting the employee/patient.

Employees can also be disciplined for being under the influence. Whether an employer may consider an employee to be impaired, and therefore subject to discipline for his use, despite his status as a registered qualifying patient, depends upon whether the employee shows symptoms while working that decrease his or her performance of his or her position. Such symptoms may include the employee’s:

• Speech;
• Coordination;
• Demeanor;
• Behavior;
• Lack of ability to operate equipment or machinery;
• Disregard for the safety of the employee or others;
• Involvement in an accident that causes serious damage to equipment or property;
• Disruption of a manufacturing process; or
• Carelessness that results in injury to the employee or others.

If, after an evaluation of the employee’s symptoms, an employer choose to discipline a qualifying patient, he must first give the employee a reasonable opportunity to contest the basis of the employer’s determination that his use of medical marijuana has caused his impairment.

The Act does provide, however, that medical marijuana cannot be used by the following classes of employees:

• Active duty law enforcement officers, corrections officers, probation officers, and firefighters;
• Individuals with a school bus permit; and
• Individuals with a commercial driver's license.

Conflicts Between State and Federal Law

While the Act prohibits an employer from penalizing a medical marijuana card-holder based on his status as a registered user, it does permit the imposition of harsher penalties if failure to do so would cause the employer to violate federal law, such as the provisions of the Drug-Free Workplace Act, or would result in the loss of federal funding or federal contracts. In such cases an employer can impose an absolute prohibition on the use of medical marijuana in the workplace, and could require clean drug tests.

Sugar Grove Employment Law Attorneys

Law Office of James F. White, P.C., is a full-service law firm that provides a wide array of civil legal services to clients throughout the Tri-Cities Area. Our passionate Sugar Grove employment law attorneys have more than 40 years’ combined experience advising both employers and employees on their rights in regard to workplace harassment, discrimination, contracts and many other employment disputes. We offer sound, practical advice designed to resolve disagreements efficiently, with an aim toward avoiding protracted litigation. Call our office today at 630-466-1600, or complete our convenient web form, to schedule an initial consultation.