Last month, Illinois became the 21st state to adopt a medical marijuana law. The law, which is tabbed as a four-year pilot program legalizing the use of marijuana for medical purposes, becomes effective on January 1, 2014 and allows users registered through the Illinois Department of Public Health to purchase up to 2.5 ounces of marijuana every 14 days from a state licensed dispensary. Despite legislators’ remarks that the law does not impact employers’ application of their drug-free workplace policies, in the absence of regulatory guidance, the Act leaves Illinois employers with a host of questions to answer, most notably: What happens when an employee or applicant with a prescription for medical marijuana fails a drug test?
Entitled the Compassionate Use of Medical Cannabis Pilot Program Act, the law states that “[n]othing in this Act shall prohibit an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner.” Indeed, the Act protects an employer’s right to discipline a medical marijuana user “for violating a workplace drug policy.” Employers could reasonably interpret this language to mean that they must now treat medical marijuana the same way they treat other lawfully prescribed medications. So, for instance, an employer conceivably might be precluded from disciplining employees for testing positive for prescription marijuana if the employer does not discipline employees who tested positive for prescription medication, such as Oxycontin”.
Adding another wrinkle, the law further states that “[n]othing in this Act shall be construed to interfere with any federal restrictions on employment including but not limited to the United States Department of Transportation” regulations. It also warns that employers may discipline for an employee’s failed drug test if it would cause the employer to violate federal law or lose a federal contract or funding. Although the U.S. Department of Justice has issued a directive de-prioritizing marijuana as an enforcement target in states with medical marijuana laws, marijuana remains an illegal schedule 1 narcotic under federal law. Further, a medical marijuana user would not have any protections under the Americans with Disabilities Act because the statute does not cover employees and applicants currently using illegal drugs. However, this medicinal drug use could conceivably be interpreted differently under Illinois state law.
Can an employer take action against an employee or applicant because they failed a drug test simply because of the use of medical marijuana? The Act itself fails to give employers a clear answer. At this point, employers look to the Department of Public Health to fill in the blanks through regulatory guidance. Ultimately, the courts may have to decide the issue as well as tension between Illinois’ medical marijuana law and federal law. So far, courts that have considered medical marijuana cases in the employment context have all sided with employers. For example, in Casis v. Wal-Mart, the Sixth Circuit Court of Appeals ruled that Michigan’s medical marijuana law did not regulate employment. Rather, the court determined that the law only gave medical marijuana users a limited protection from criminal prosecution by the state and protections from other adverse state actions in certain situations. The Washington Supreme Court reached a similar result in Roe v. Teletech Customer Care Management, while the Supreme Courts of California, Oregon, and Montana have all held that employers have no duty to make accommodations for employees who use medical marijuana. The Colorado Court of Appeals rejected a fired medical marijuana user’s claim under the state’s lawful activities statute—which makes it illegal for employers to take action against employees who use lawful products outside the workplace—because marijuana is still illegal under federal law.
For employers that would like to avoid the inevitable test case for Illinois’ medical marijuana law, they should take a close look at whether, when, and for what substances they will conduct drug testing. For employers with federal contracts or otherwise subject to federal regulations requiring a drug-free workplace, those practices need not change under Illinois medical marijuana law. However, where use of medical marijuana might be at issue, employers are well advised to first seek legal counsel before disciplining or terminating an employee after they have tested positive for marijuana.