Employer Insights: Illinois’ Permanent Commitment To Medical Marijuana

On August 9, 2019, Illinois Governor Pritzker signed legislation amending the state’s current medical marijuana pilot program. The Compassionate Use of Medical Cannabis Program Act (the “Medical Cannabis Act”) makes the medical marijuana program, which was initially enacted as a pilot program in 2013, permanent and expands the qualifying medical conditions for a medical marijuana card to include at least 12 new conditions, including chronic pain, irritable bowel syndrome, migraines, osteoarthritis, and ulcerative colitis. The Medical Cannabis Act also provides easier access to a medical marijuana card by expanding the range of medical professionals who can certify eligibility of applicants to the program. In addition to physicians, advanced practice registered nurses or licensed physician assistants can diagnose and certify an individual’s eligibility for the medical marijuana program. The amendments to the medical marijuana pilot program are effective immediately.

The Medical Cannabis Act continues to protect the status of a registered medical marijuana cardholder and prohibits an employer from discriminating against a cardholder based on his or her status as a registered qualifying patient of medical marijuana. However, employers may continue to take into account an employee’s medical marijuana cardholder status, if failing to do so would force the employer to violate federal law, such as the Department of Transportation regulations or the provisions of the Drug Free Workplace Act.

The Medical Cannabis Act does not change the express workplace protections previously included in the state’s medical marijuana pilot program. Employers should be able to continue to enforce zero-tolerance or drug free workplace policies, discipline a cardholder for violating a workplace drug policy, and discipline an employee based on a good faith belief that an employee is impaired at work. Similar to Illinois’ recreational marijuana law (the Cannabis Regulation and Tax Act) which takes effect January 1, 2020, if an employer disciplines a marijuana cardholder based on its good faith belief of impairment, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

However, employers should be aware that they may need to engage in an interactive process to determine whether they are able to accommodate an employee’s off-duty use of medical marijuana. Recent rulings in federal and state courts outside of Illinois have found that, depending on the language of the state’s anti-discrimination or medical marijuana statutes, the use of medical marijuana may be a reasonable accommodation for an employee, when the use occurs outside of working hours and does not adversely affect safety or job performance.  The Illinois Human Rights Act prohibits employment practices that discriminate on the basis of a person’s actual or perceived disability, if the disability is unrelated to the person’s ability to perform the job in question. Thus, for example, if an employee contests his employer’s impairment determination by informing his manager that he has a medical marijuana card for migraines, his employer may need to engage in the interactive process prior to taking a disciplinary action.

By legalizing recreational marijuana use and expanding the medical marijuana program, marijuana use in Illinois is likely to become more prevalent, and employers can expect an increase in marijuana-related issues to infiltrate the workplace.   Accordingly, Illinois employers should take steps now to ensure they are ready to address marijuana-related issues in the workplace. Some actions for employers to consider include:

1. Review and update workplace drug policies to ensure employees are on notice of prohibited workplace conduct and the disciplinary action and process for violating the policy. The policy should include a written procedure for employees to be able to contest a cannabis-based disciplinary determination. In addition, for employment policies that cover employees in multiple states, consider whether to include state-specific information relating to Illinois’ medical and recreational marijuana laws effect on Illinois-based employees. Similar information may be required to tailor specific language for employees in other states that have their own recreational and/or medical cannabis regulations to ensure that employees clearly understand the state-specific cannabis regulations and the Company’s workplace drug policies.
2. Review and update reasonable accommodation policies, as employers may need to engage in an interactive process and make an effort to accommodate an employee’s off-duty use of medical marijuana.

3. Train supervisors on how to recognize, properly document and promptly report the signs of suspected marijuana impairment. Illinois’ medical and recreational marijuana laws provide specific symptoms to look for when making a determination that an employee is “impaired” or “under the influence” of marijuana,  including  the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment or machinery, disregard for the employee’s own safety or the safety of others, involvement in any accident resulting in serious damage to equipment or property, disruption of a production or manufacturing process, and carelessness that results in any injury to the employee or others. This training will help establish that an employer had a “good faith belief” that the employee was impaired on the job and therefore that discipline was warranted and lawful. This training should also include reminders that company policy must be applied in a nondiscriminatory manner.

Please contact James Oh and Kathleen Barrett if you would like to discuss assistance in preparing your workplace for handling marijuana-related issues in Illinois or elsewhere.