Hot Employment Topics For 2014-Part VI: Employees' Use Of Marijuana

by Jackson Walker
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This is the sixth of a seven-part series describing "Hot Employment Topics for 2014." Part VI focuses upon "Use of Marijuana in the Workplace."

Recent publicity about the enactment of laws in several states legalizing the sale and use of marijuana has triggered concerns about employment policies regulating the use of marijuana in the workplace.

Illinois. In its most recent legislative session, the Illinois Legislature enacted House Bill 1, which was codified as 410 ILCS 130/1 et seq., known as the "Compassionate Use of Medical Cannabis Pilot Program Act," and became effective on January 1.

The act provides a limited exception to Illinois' criminal law to allow for the medical use of cannabis by a patient. The act further precludes an employer from penalizing a person solely for his or her status as a registered qualifying patient or a registered designated caregiver, unless failing to do so would put the employer in violation of federal law or unless failing to do so would cause it to lose a monetary or licensing-related benefit under federal law or rules.

On the other hand, the Act (410 ILCS 130/50) does not prohibit an employer from:

  1. adopting reasonable regulations related to the use of medical cannabis;
  2. enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner;
  3. disciplining a registered qualifying patient for violating a workplace drug policy;
  4. disciplining a registered patient for failing a drug test if failing would put the employer in violation of federal law; or
  5. considering a registered patient impaired when the employee manifests specific, articulable symptoms that affect his/her their performance while working.

Further, the Act (410 ILCS 130/50(g)) protects an employer by barring a claim by an employee for:

  1. actions based on the employer's good faith belief that a registered patient used cannabis on the employer's premises;
  2. actions based on the employer's good faith belief that a registered patient was impaired at work; or
  3. injury or loss to a third party if the employer neither knew nor had reason to know that the employee was impaired.

The Illinois Legislature also anticipated a potential employment issue raised by employees who travel to a state where the purchase of marijuana has been legalized (such as Washington or Colorado). According to 820 ILCS 55/5, employers cannot refuse to hire, and cannot discharge or otherwise disadvantage, any individual with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours. This statute provides an exception permitting an employer to distinguish between employees concerning the types of insurance coverage (whether health, disability or life insurance) available based upon the employee's use of such lawful products.

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Jackson Walker
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