Medical cannabis and the workplace

To date, 24 states, including Illinois in 2013, have enacted legislation legalizing medical marijuana for the treatment of designated medical conditions as part of a pilot program. An additional five states are currently considering similar legislation. Four states and the District of Columbia have legalized cannabis for recreational use. While recreation use is not yet legal in Illinois, the number of registered medical marijuana users continues to increase and the passage of even more receptive legislation broadening the potential patient base is predicted in the near future.

Legalized use of medical marijuana puts many Illinois employers in an unfamiliar and, sometimes, uncomfortable position. Under Illinois’ Compassionate Use of Medical Cannabis Pilot Program Act (the Act), employers cannot discriminate against or penalize a person solely on the basis of his or her status as a medical marijuana patient. Likewise, under the Act, an employer cannot refuse to hire an applicant solely based on the fact that he or she is a registered medical cannabis user.

That said, the Act seems to run contrary to many employers’ established guidelines regarding anti-drug use policies in the workplace. However, the Act itself provides notable exceptions in that regard. For instance, it allows employers to adopt reasonable regulations concerning consumption, storage and timekeeping requirements for a registered user. Further, the Act specifically allows employers to maintain and enforce their drug testing, zero tolerance and drug-free workplace policies. It also provides for an exception where nondiscrimination of a registered cannabis user would put the employer in violation of federal law or in danger of losing a federal contract or funding. Along those same lines, the Act specifically states that it shall not “interfere” with an employer’s contractual obligations for drug-free employees when regulated by the United States Department of Transportation. In short, there are special circumstances where an employer may discriminate against a registered user without running afoul of the Act.

Medical cannabis in Illinois is in its infancy. As more and more users are registered, employers will be faced with the Act’s application to their current policies. Employers should familiarize themselves with the Act, its requirements and exceptions with respect to employees. Further, employers should seek counsel prior to making decisions as to hiring, firing or discipline based on a registered cannabis user’s drug test results.

If you have questions regarding the Act or its impact on employment matters, please feel free to contact us.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by: Francisco E. Connell, Principal

This alert originally appeared in the Fall 2016 Corporate Focus Newsletter.