Expansion of cannabis pilot program creates further uncertainties for employers

To date, 46 states, including Illinois, have enacted some form of legislation legalizing pharmaceutical cannabis for the treatment of designated medical conditions. In August 2018, former Governor Bruce Rauner signed into law legislation that expanded the existing Illinois’ Compassionate Use of Medical Cannabis Pilot Program Act (the Act) which allows doctors to prescribe medical cannabis as an alternative to opioids. It is anticipated that the new legislation, which will go into effect early in 2019, will greatly increase the number of individuals who are prescribed medical cannabis in Illinois.

Legalized use of medical cannabis puts many Illinois employers in unfamiliar territory. Under the Act, employers cannot discriminate against, refuse to hire or penalize a person solely on the basis of their status as a medical cannabis patient or a registered medical cannabis user. That said, the Act seems to run contrary to many employers’ established standard guidelines regarding drug use in the workplace.

The Act does provide a few notable exceptions. For instance, it allows employers to adopt regulations concerning consumption, storage and timekeeping requirements for a registered user. Additionally, the Act allows employers to maintain and enforce their drug testing, zero tolerance and drug-free workplace policies. Further, it 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. As such, there are specific circumstances where an employer may discriminate against a registered user without running afoul of the Act.

Laws regarding medical cannabis in Illinois continue to evolve. As the Act expands and more patients are registered, employers will be faced with the Act’s application to their current employment policies. Employers should familiarize themselves with the Act, its requirements and exceptions with respect to employees. Employers should seek counsel prior to making decisions as to hiring, firing or disciplining based on a registered medical cannabis user’s drug test results.

If you have questions regarding the Act or its impact on employment matters, please feel free to contact a Chuhak & Tecson Employment Law attorney.

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: Evan D. Blewett, Associate

This alert originally appeared in the January 2019 Employment Focus newsletter.