Medical Marijuana Comes To Illinois In 2014 – How Do Employers Weed Through The Impact On The Workplace?

by Franczek Radelet P.C.
Contact

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. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.
Contact
more
less

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.