On August 2, 2013, Illinois Governor Pat Quinn signed the Compassionate Use of Medical Cannabis Pilot Program Act, P.A., 98-0122. As of January 1, 2014, the Act will establish a four-year pilot program in Illinois that authorizes the cultivation and distribution of medical cannabis for the use of registered qualifying patients (RQPs). RQPs are only those patients who have certain specified debilitating medical conditions1 and obtain state registration cards.
Time to Review Manuals and Testing Policies
In addition to numerous regulations concerning the establishment and operation of cannabis cultivation centers and distribution facilities, and the requirements for dispensing and receipt of cannabis prescriptions, the Act includes specific provisions concerning the impact of the pilot program on employers of RQPs and caregivers.
Many details of the pilot program — including the adoption of related administrative rules and regulations — are not yet available; the actual prescription of medical marijuana may not begin until the middle of 2014; and specific effects of the Act on employment policies and employer liability are still unclear. Nevertheless, employers may wish to review their employee manuals and drug testing policies to anticipate whether any revisions will be appropriate in light of the Act and its related regulations.
Workplace Drug Policies and Employment Manual Provisions
Without regard to the Act, Illinois employers may prohibit illegal drug and alcohol use by employees at the workplace and require that employees not be under the influence of illegal drugs or intoxicated while at work. Employers often codify these prohibitions with a drug-free workplace policy. Such policies may stand alone and/or be in the employee handbook. They commonly include these types of provisions:
- The manufacture, distribution, dispensation, sale, possession or use of alcohol, illegal drugs or controlled substances while on duty or on employer property is prohibited and will subject employees to immediate discharge.
- Employees who are impaired by or under the influence of alcohol, illegal drugs or controlled substances, or who have any of the same present in their bodily systems while on duty or on employer property, will be subject to discharge.
- Off-the-job, illegal manufacture, distribution, dispensation, sale, possession or use of illegal drugs or controlled substances will subject employees to disciplinary action, up to and including immediate discharge.
- The employer reserves the right to search the person, vehicle and personal property of employees for contraband (including, but not limited to alcohol, illegal drugs, controlled substances and drug paraphernalia) while on duty or on employer property. The employer also reserves the right to search all employer property (including, but not limited to, employee offices, desks and lockers) for such contraband. Employees who fail to submit to or cooperate fully in such searches will be subject to disciplinary action, up to and including immediate discharge.
- Each employee must notify the employer of any conviction under a criminal drug statute that the employee receives for a violation occurring while on duty or on employer property within five days of such conviction.
- Employees taking a prescribed drug or controlled substance must maintain the same in the original container identifying the drug or substance, dosage, date of prescription, name of the person for whom it was prescribed and authorizing physician. Employees also must review with their employer any work restrictions that should be observed while taking the prescribed drug or substance.
- Employees may be required to submit to a drug and/or alcohol test as a condition of continued employment. Employees who fail to submit to the required tests and/or test positive for alcohol, illegal drugs or controlled substances will be subject to immediate discharge.
Substantive Provisions of the Act Relating to Employers
In general, the Act will not prohibit employers from adopting and following the general policies set out above. Although it includes various regulations concerning employees of cannabis cultivation centers and distribution facilities, this alert focuses on the broader impact of the Act on employers who are uninvolved with the production or distribution of cannabis.
Section 40 of the Act makes clear that employers may not penalize a person solely for his or her status as an RQP or caregiver, unless failing to do so would put the employer in violation of federal law, or unless failing to do so would cause it to lose a monetary or licensing-related benefit under federal law or rules.2 Employers are not prohibited from enforcing policies concerning drug testing, zero-tolerance for drug possession or use or drug-free workplaces if those policies are applied in a non-discriminatory manner, however.3
The Act also proscribes discrimination against the employer as to the receipt of state benefits, stating that no employer may be penalized or denied any benefit under state law for employing an RQP.4
Employers and Employer Liability
Section 50 of the Act addresses specific issues related to employment and employer liability. Generally, the language of Section 50 minimizes the potential impact that the pilot program will have on workplace policies and employer liability. Specifically, it states that the Act:
- does not prohibit employers from adopting "reasonable regulations" concerning the consumption, storage or timekeeping requirements for RQPs related to the use of medical cannabis5
- does not prohibit employers from enforcing policies concerning drug testing, zero-tolerance or drug free workplaces, provided such policies are applied in a non-discriminatory manner6
- does not limit employers from disciplining an employee who is an RQP for violating a workplace drug policy7
- does not limit employers' ability to discipline an employee who is an RQP for failing a drug test if failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or funding8
- does not create a defense for a third party who fails a drug test9
- allows an employer to consider an RQP to be impaired when he or she manifests specific, articulable symptoms while working that decrease or lessen his or her performance of the duties or tasks of the employee’s job position, provided that if the employer disciplines the RQP, it must provide a reasonable opportunity to contest the basis of the determination10
does not create or imply a cause of action for any person against an employer for:
- actions based on the employer’s good faith belief that a registered qualifying patient used or possessed cannabis while on the employer’s premises or during the hours of employment
- actions based on the employer’s good faith belief that a registered qualifying patient was impaired while working on the employer’s premises during the hours of employment
- actions based on injury or loss to a third party if the employer neither knew nor had reasons to know that the employee was impaired11
- does not interfere with any federal restrictions on employment including but not limited to the United States Department of Transportation regulation 49 CFR 40.151(e)
Although the Act’s language strives to minimize its impact on existing workplace policies and liabilities, as discussed below, employers may wish to examine existing drug testing policies and employee manual provisions to ensure that they are not discriminating against RQPs or caregivers under the Act.
Potential Effects of the Illinois Medical Marijuana Law on Employers
Because the Act creates new law, there will not be any controlling legal precedent interpreting the Act once it takes effect. Again, the Act provides significant clarity concerning various issues related to employee conduct and employer liability. Nevertheless, several questions remain concerning the potential impacts of the Act that employers should be aware of and attuned to, including the following:
Random Drug-Testing Requirements
- Prospective employees. The Act makes clear that a person’s ability to receive prescriptions for medical cannabis does not create a "defense" for a "third party" who fails a drug test. This would seem to apply to applicants for employment rather than employees, but it is unclear whether this will be actually be the case. It will be important to monitor the adoption of regulations implementing the Act to assess whether there are other impacts on potential hires that should be taken into account.
- Existing employees. If an employer has random drug testing for current employees, the question arises: "What do we do with a current employee who is an RQP who tests positive for cannabis?" Given that the Act prohibits employers from discriminating against an employee simply because he or she is an RQP, an employer must carefully consider whether to include cannabis in random drug testing regimes, particularly since such tests do not allow the employer to identify when specifically the cannabis was consumed — i.e., during unpermitted workplace time or during permitted non-working time.
- Triggering Events. Employment policies typically implement drug testing requirements on either a random basis or upon reasonable suspicion of policy violations. An example of a common "trigger" for such testing is an employee that is involved in a workplace accident, which then triggers a drug test under the policy. It is not clear under the Act how an employer may or should address an employee who tests positive for cannabis in a post-accident test but claims that the cannabis consumption occurred when the employee was not at work. Cannabis may remain in an employee’s system for a significant period of time, and a positive test may not isolate whether the employee was using or intoxicated on the job. It is thus not yet known whether an employer may take disciplinary action based on the results of such a test or whether such an action would be unlawful discrimination based on the individual’s status as an RQP. Employers should watch for further developments and seek legal advice before taking action in such situations.
Workplace policies and requirements
- Use of Cannabis in the Workplace. The Act does not require employers to either allow RQPs to use or be under the influence of cannabis in the workplace. It is unclear, however, whether any adjustments to sick leave policies would be appropriate to allow the use of medical cannabis outside of the workplace.
- Right to Privacy in the Workplace. The status of an employee as an RQP may impact the employee’s right to privacy in certain circumstances. Employers should not disclose an employee’s status as an RQP.
- Multi-state Employment Policies. Employment policies that cover employees in multiple states may require the inclusion of state-specific information relating to the Act’s impacts on Illinois-based employees. Similar information may be required to tailor specific language for employees in other states that have their own medical cannabis regulations. Care will need to be taken to ensure that employees clearly understand the impact of their state-specific regulations.
Employment Regulations to Follow
The vagaries of the Act make interpretation and analysis for employment purposes difficult at this time. As the applicable employment regulations are released, we will provide further information and guidance on the implications of the Act to Illinois employers and employees.