On Aug. 1, 2013, Gov. Patrick Quinn signed into effect Illinois' version of state laws allowing the use of marijuana for medicinal purposes. Entitled the “Compassionate Use of Medical Cannabis Pilot Program Act,” Illinois now joins almost two dozen other states who allow marijuana use for medicinal purposes. Touted as one of the most restrictive medicinal marijuana use laws in the nation, the law is a pilot program and will be automatically repealed after four years.

Based upon legislative findings that show the therapeutic value of marijuana use, the law allows registered users to purchase up to 2.5 ounces of marijuana every 14 days from a registered, licensed dispensary which obtains the drug from a registered, licensed intrastate cultivation center. Various provisions of the law will be enforced by the Departments of Public Health, Agriculture, and Financial and Professional Regulation. The law provides physicians, registered patients and caregivers, and registered dispensing organizations and cultivation centers immunity from arrest and prosecution or penalty. The law prohibits, among other things, the possession or use of cannabis in vehicles, on school grounds or in public places.  

Regarding employment, the law expressly provides that it does not prevent a private business from restricting or prohibiting the medical use of marijuana on its property. The law prohibits an employer from discriminating against an individual who is a registered user or caregiver, and this discrimination would cause the employer to violate or lose a benefit under federal law. The law also provides that no employer shall be denied any state benefits for employing a cardholder. The Act expressly maintains that health insurers are not required to reimburse a person for the costs of medicinal marijuana use,

The law specifically provides that an employer may adopt reasonable rules relating to the use of medical marijuana. An employer is not prohibited from enforcing a policy concerning drug testing, zero-tolerance, or a drug-free work place, provided the policy is applied in a nondiscriminatory manner. The law also provides that an employer may discipline a registered user for violating a workplace drug policy, or for failing a drug test, if the failure to impose discipline would put the employer in violation of federal law or cause it to lose a federal contract or funding.

The law expressly provides that an employer may consider an employee impaired when the employee manifests specific, articulable symptoms, defined as speech, dexterity, agility, demeanor, etc. If an employer disciplines a registered user, it must provide the employee with a reasonable opportunity to contest the basis of the determination. The Act also provides that no cause of action is created against an employer for 1) adverse actions taken in the good faith belief that the employee used or possessed cannabis while on the employer's premises, 2) adverse actions taken in the good faith belief that the employee was impaired while working, or 3) loss or injury to a third party if the employer neither knew or had reason to know that the employee was impaired. Finally, the Act provides that it shall not be construed to interfere with any federal restriction on employment, including Department of Transportation regulations.

While the statute creates uncertainties for employers, certain things are clear. An employer is not required to allow an employee to possess or use medical marijuana while at work or on the employer's property. An employer is not required to allow an employee to work while impaired, and an employer may discipline an employee for being impaired if it has a good faith belief that the employee is impaired, or if not doing so would place the employer in violation of federal law or would cause the employer to lose a federal contract or funding. It is also clear that the employer is permitted to discipline the registered user employee to the same extent that it would discipline other employees who use controlled substances or alcohol while at work, or who are impaired at work. Unlike the medical use laws of other states, such as Maine and Arizona, the law attempts to define impairment.

It would also seem clear that an employee who is a registered user is not a person with a disability under the meaning of the Americans with Disabilities Act (ADA), because a protected, disabled individual under the ADA is not one who uses drugs unlawful under federal law. However, the underlying medical condition requiring the medical use of marijuana would probably be a disabling condition under federal law in its own right. Moreover, a claim of unlawful discrimination could be posited upon the employer's perception that the employee has a disability. The employee would have at least protections under the Illinois Human Rights Act.

Because of the antidiscrimination provisions of the statute, an employer may not necessarily discipline a registered user to the same extent that it would a non-registered user for testing positive for marijuana. The law does provide the employer with the right to discipline or discriminate against a registered user if it would cause an employer to lose a federal contract, which seems to be a nod to the federal Drug Free Workplace Act. Moreover, the law clearly provides that federal regulations, such as the Department of Transportation's regulations that require the removal from duty of a driver who tests positive, shall remain in effect. Otherwise, however, it would seem to be unlawful to discipline a registered user for testing positive alone, where the employee was not possessing or using, or impaired, on the job. Moreover, an employer cannot discriminate against a registered user who is an applicant who tests positive on a pre-employment drug screen.

Prudent employers in Illinois should revisit their employee handbooks and drug testing policies immediately. Additionally, employers should train their supervisors in the requirements of the new law and in determining whether an employee is impaired. Any dispute over an adverse action based on impairment will hinge on the employer being able to articulate a good faith reason for its conclusions.