On August 1, 2013, Illinois joined a growing list of states—now 20—allowing the use of medical marijuana when Governor Pat Quinn signed the Compassionate Use of Medical Cannabis Pilot Program Act (the Act). The stated purpose of the Act is to permit individuals who are suffering from certain debilitating medical conditions to use prescribed medical marijuana to alleviate their symptoms.
The Act is one of the strictest of its kind and includes the following noteworthy provisions:
A person may not be prescribed more than 2.5 ounces of marijuana during a 14-day period and may not possess more than 2.5 ounces of marijuana at any time;
The prescribing physician must have a prior and ongoing medical relationship with the patient and must find that the patient has one of approximately 35 listed debilitating medical conditions for the marijuana to be prescribed;
Patients must buy the marijuana from one of 60 dispensing centers throughout the state and may not legally grow their own;
Users will carry cards that indicate how much they have bought to prevent stockpiling. The Illinois Department of Public Health will issue the cards;
Dispensing centers will be under 24-hour camera surveillance, and workers at dispensing and cultivation centers will undergo criminal background checks;
Marijuana use will be banned in public, in vehicles and near school grounds;
Property owners will have the opportunity to ban marijuana on their grounds.
Notably, the Act contains certain employment-related provisions in contrast to the recently enacted concealed carry law in Illinois (which provides no guidance to employers). Under the Act, Illinois employers are prohibited from discriminating against or penalizing a person based solely on his or her status as a patient qualified and registered to receive medical marijuana. This means, for example, that employers should not discipline or terminate employees solely because of their use of medical marijuana or their status as a registered user. Additionally, Illinois employers should not refuse to hire an applicant because he or she is a registered user under the Act. Doing so could not only violate the Act, but could also violate disability discrimination statutes given the fact that most registered users will likely have a disability. In light of the Act's prohibition on discrimination, employers should consider updating their antidiscrimination policies to take into account the new protection afforded to covered employees.
Despite the new requirements imposed by the Act, employers still have a significant amount of flexibility to enforce their workplace policies. For example, according to the very language of the Act, employers may still enforce a "policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner." The Act also creates an exception to its nondiscrimination provision by permitting employers to discriminate against or penalize registered users if failing to do so would put the employer in violation of federal law or cause it to lose a monetary or licensing-related benefit under federal law. Businesses with federal contracts with the Department of Transportation, for example, must comply with drug-testing regulations under federal law that prohibit contractors' employees from using marijuana. Thus, such businesses would likely maintain and enforce a drug-free workplace policy without violating the state medical marijuana law.
There are still many unanswered questions regarding the Act. Until the law goes into effect in January of 2014 and regulations are put into place, the exact scope and impact of the Act on employers remains unclear. Employers should nonetheless familiarize themselves with the Act's employee protections and seek counsel before disciplining, terminating or refusing to hire a registered user for failing a drug test.
Cara J. Ottenweller is an Associate in the firm’s Labor and Employment practice area. Ms. Ottenweller counsels and represents employers in a variety of traditional labor and employment law matters, including U.S. federal and state litigation and administrative proceedings before the Equal Employment Opportunity Commission, the National Labor Relations Board and other federal, state and local agencies. Ms. Ottenweller’s experience includes advising clients on a broad range of day-to-day human resources issues such as EEO compliance, antidiscrimination laws, employee discipline and discharge...