Is Chi-Town About to Become High-Town?

25 November 2013 Labor & Employment Law Perspectives Blog

Medical marijuana legally blows into the Windy City and the rest of Illinois in 2014, are employers ready? The Compassionate Use of Medical Cannabis Pilot Program Act (the “Act”) takes effect on January 1, 2014, carrying with it implications for employers in Illinois who will now be faced with issues of employees who become “registered qualifying patients” and begin using medical marijuana under the Law. If you have not started thinking about how the Act could impact your workplace, now would be a good time to start.

The Act provides that nothing “shall prevent a private business from restricting or prohibiting the medical use of cannabis on its property.” Thus, regardless of whether one of your employees can legally use and/or possess medical marijuana under the Act, you can still prevent them from using or possessing medical marijuana in the workplace. Employers should ensure that their workplace policies clearly prohibit the use or possession of marijuana (medical or otherwise) on your premises.

Additionally, the Act contains specific provisions dealing with employment and employer liability. Specifically, nothing in the Act prevents employers from the following:

  • Adopting reasonable regulations concerning the consumption, storage, or timekeeping requirements for qualifying patients related to the use of medical marijuana;
  • Enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner;
  • Disciplining a registered qualifying patient for violating a workplace drug policy; and
  • Disciplining an employee 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.

Also of note, the Act does not create or imply a cause of action for any person against an employer for: 1) actions based on the employer’s good-faith belief that a registered qualifying patient used or possessed cannabis while on the employer’s premises or during the hours of employment; 2) actions based on the employer’s good-faith belief that a registered qualifying patient was impaired while working on the employer’s premises during the hours of employment; and 3) injury or loss to a third party if the employer neither knew nor had reason to know that the employee was impaired.

Unlike other state medical marijuana laws that leave employers guessing  at what it means to be impaired or under the influence, the Act helpfully provides the following guidance as to when an employer may consider a registered qualifying patient to be impaired:

[W]hen 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, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment or machinery, disregard for the safety of the employee or others, or involvement in an accident that results in serious damage to equipment or property, disruption of a production or manufacturing process, or carelessness that results in any injury to the employee or others.

To the extent an employer plans to discipline a qualifying patient under the guidance above, it must afford the employee a reasonable opportunity to contest the basis of the determination (i.e., if you are not going to use a drug test, you must give the employee a chance to dispute that they are impaired due to the use of marijuana).

The full extent of the impact of the Act on Illinois employers likely will not be known until courts begin interpreting the Act. However, before the first of the year, employers in the state should make sure that their workplace policies specifically address the use and possession of marijuana in the workplace. Additionally, as a practical matter, employers should remind their supervisors and managers to be looking for impaired behavior that may be on the rise once the Act goes into effect.

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