As of November 9, 2015, medical marijuana dispensaries are opening their doors in Illinois and processing patients who will be the first recipients of the drug under Illinois’ Medical Cannabis Pilot Program. This program is a four-year experiment, at the end of which state government officials will evaluate the outcome before deciding whether to restrict, expand, or modify the approved uses of cannabis in Illinois. The program permits lawful use of marijuana for medical purposes, specifically limited to the treatment of 3 conditions and diseases, which are listed in the Illinois Compassionate Use of Medical Cannabis Pilot Program Act. In other words, recreational use of marijuana has not been legalized and, indeed, Illinois’ program is one of the most restrictive regulatory programs in the country. For now, approximately 3,300 patients have qualified to participate in the program and eight dispensaries have opened throughout the state. It is expected that twenty to twenty-five dispensaries will be open by the end of the year.
While the passage of such a law is far from uncommon in today’s world, it is bound to cause furrowed brows on the foreheads of employers throughout Illinois – particularly those with a strict no-tolerance policy for drug use. Below are some key points employers in Illinois should know about this program, as patients begin lawfully purchasing and using marijuana throughout the state.
Medical Marijuana Use and the Workplace
One of the first questions likely on the mind of employers is whether they are required to allow patient-employees to use medical marijuana in the workplace. The short answer to this question is, no, Illinois’ program does not impose such a requirement on employers. Nor is an employer required to permit off-duty medical marijuana use for employees in a safety-sensitive position, where the employee’s marijuana use could result in an increased risk of harm to the employee or others. The Act specifically states that a registered patient is immune from various penalties, including disciplinary action from an occupational or licensing board, unless the use of cannabis impairs that licensed professional when he or she is engaged in the practice of his or her profession. Further, the Act does not permit the “undertaking of any task under the influence of cannabis, when doing so would constitute negligence, professional malpractice, or professional misconduct.” Section 30(a)(1). Thus, an employer is still permitted to enforce a zero-tolerance policy for employees in such a position, such as, for example, physicians.
Medical Marijuana and the American with Disabilities Act
A trickier question is whether an employer must allow an approved patient-employee to use medical cannabis as a “reasonable accommodation” under the ADA. Clearly, the same types of diseases and conditions listed in Illinois’ Pilot Program Act will likely qualify that individual for protections under the ADA, including the right to reasonable accommodations. In other states where the medical use of marijuana is legal, many state laws specify whether permitting such marijuana use is a “reasonable accommodation” under the ADA. Currently, however, Illinois’ law does not specify whether the use of medical marijuana is a required reasonable accommodation under the ADA, which seems to leave it up to each employer to make an individualized determination of whether such an accommodation is reasonable. An employer faced with a request for such a reasonable accommodation, when presented with proof that the employee is a qualified and approved patient under the program, is encouraged to consult with an experienced employment law attorney for guidance in these murky waters.
Can Illinois Employers Maintain a Zero-Tolerance Drug Policy and/or Drug Test Employees?
Yes, employers can still adopt or maintain its policies regarding drug testing, zero-tolerance, or a “drug free workplace.” As ever, though, that policy must still be enforced and applied in a nondiscriminatory manner. In other words, if an employer learns that its employee is a qualified and approved patient under the new program, that employer cannot institute periodic drug testing for just that employee without running the risk of liability for disability discrimination.
On the other hand, if an employer notices that one of its employees is displaying symptoms of being under the influence of marijuana while at work, the employer is expressly permitted to enforce a policy requiring the employee to undergo a drug test, even if that employee is a qualified and registered patient under the Act. Employees who are qualified patients can still be disciplined for violating a workplace drug policy. Similarly, such employees can be disciplined for failing a drug test, if failing to do so would put the employer at risk of losing a federal contract or federal funding, or would otherwise put the employer in violation of federal law.
With the new pilot program off and running, now that the dispensaries are open, now is a good time for Illinois employers to review their personnel policies and procedures as they relate to drug testing and responding to employee drug use and/or abuse. Employers are encouraged to consult with legal counsel in this process, as it is critical that employers have a consistent and clear plan for responding to drug test results.