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Employers are Reminded to be Cautious when Disciplining Employees for Cannabis Use

As Illinois marijuana dispensaries open in Illinois, employers are reminded to be cautious when taking adverse action against employees testing positive for cannabis when the employee is a registered qualifying patient using cannabis pursuant to a legal medical prescription.

Regulated medical marijuana sales began in Illinois on Monday, November 9, 2015. Open dispensaries include locations in Canton, Quincy, Marion, Mundelein, Addison, North Aurora, Schaumburg, Ottawa, and Evanston. According to the State of Illinois website, the Director of Illinois Medical Cannabis Pilot Program anticipates 12 to 15 medical cannabis dispensaries will be registered by the end of November, with approximately 20 to 25 dispensaries registered throughout Illinois by end of the year. The dispensaries were legalized pursuant to the Compassionate Use of Medical Cannabis Pilot Program Act (the “Act” or “Illinois Act” or “Illinois law”), which was signed by former Governor Quinn on August 1, 2013, and became effective on January 1, 2014.

The State of Illinois website estimates that 3,300 Illinois residents have a medical condition which qualify for treatment with cannabis. The State began mailing Medical Cannabis Registry Identification Cards to registered qualifying patients and caregivers on October 30, 2015. According to the State of Illinois website, “Qualifying patients and caregivers may visit any registered dispensary in the State, but must designate a single dispensary with the Illinois Department of Public Health in order to make a medical cannabis purchase.”

Now that qualifying employees may legally obtain cannabis at dispensaries in Illinois, Illinois employers are faced with the reality that some employees testing positive for cannabis may have a legal prescription for the medical marijuana valid under Illinois law. Prior to the Act, employers could legally terminate employees who tested positive for cannabis without the fear of an employee lawsuit. As discussed in this article, the new Illinois law creates potential legal risks for employers who take adverse action against employees with legal medical prescriptions for cannabis.

Initially, it is important to make clear that, despite Illinois law legalizing medical marijuana, federal law continues to outlaw the possession of cannabis, even if the possession is for medical purposes. In fact, Illinois law recognizes an employer’s right to discipline an employee for failing a drug test if failing to do so would put the employer in violation of federal law. However, in 2013, the U.S. Justice Department indicated that it was not going to waste government resources prosecuting patients or caregivers who are in clear compliance with state medical marijuana laws.

The problem for employers is the “carry-over impairment effect” of cannabis which allows cannabis to remain in an individual’s system for an extended period of time. Accordingly, it is possible for a qualified patient to legally use marijuana off-duty during non-work hours, but receive a positive drug test administered by the employer at a later time during work hours.

Illinois law makes it unlawful for an employer to refuse to disadvantage or discharge any individual because the individual uses lawful products off the premises of the employer during nonworking hours. In addition, any employee who has a lawful medical prescription for cannabis will likely have some sort of medical condition or disability, which is a legal characteristic protected by Illinois and federal law. If an employer takes adverse action against an employee who has a legal prescription for medical marijuana, this creates the risk of potential lawsuits against employers because employees will argue the adverse action was due to their disability or for using lawful products during non-working hours.

The Act provides protection to employers who take action against employees that are registered qualifying patients so long as the action is based on a good-faith belief that the employee used or possessed cannabis while on the employer’s premises or during the hours or employment or the employee was impaired while working on the employer’s premises during the hours of employment. The Act also makes clear that employers may enforce a drug testing policy or zero tolerance/drug-free workplace policy provided the policy is applied in a non-discriminatory manner. The Act also clarifies that employers may discipline an employee for failing a drug test if refraining from disciplining the employee would put the employer in violation of federal law or cause it to lose a federal contract or funding. Importantly, the Act requires that if an employer elects to discipline a qualifying patient with a legal prescription, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

In short, when an employee tests positive for cannabis, there are numerous factors that should be considered by the employer prior to taking any adverse action, including: whether the employee was visibly impaired at work; what evidence the employer has to prove the employee was visibly impaired at work; whether the employer should notify the employee of the positive test result to provide the employee an opportunity to explain the positive test result; whether failure of the employer to discipline an employee will result in the employer violating federal law (such as Department of Transportation regulations) or lose a federal contract, federal funding, or other federal licensing-related benefit; and whether the employer should take adverse action against employees who are not visibly impaired at work but possess a prescription for medical marijuana.

Each situation must be evaluated on a case-by-case basis. Employers are encouraged to contact legal counsel prior to taking adverse action against qualifying patients who have a legal medical prescription for marijuana.

For more information concerning this or other issues affecting labor and employment, please contact:

Kimberly Sarff
Peoria, Illinois
Direct:  309-636-7225
Fax:  309-674-6503
Email:  ksarff@quinnjohnson.com

 

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Copyright © 2015 Kimberly A. Sarff, Esq., Quinn Johnston Henderson Pretorius Cerulo