Effective January 1, 2014, Illinois became the 20th state to legalize medical marijuana.  The passage of this law has created concerns for employers, which we outline below.

The Illinois Compassionate use of Medical Cannabis Pilot Program Act (the “Act”), enacted just that: a pilot program that is scheduled to be repealed on January 1, 2018.  The purpose of the act is to permit individuals who are suffering from certain identified “debilitating medical conditions” (the law specifically identifies 35 such conditions) to alleviate their symptoms and to exempt qualifying patients from criminal prosecution under Illinois state law.  By way of reminder, under federal law, marijuana remains classified as a Schedule 1 drug and its manufacture, distribution, possession and use (even for medical purposes) is illegal.

We note first that employers should rest easy, because the Act provides broad protections for employers from liability for a cause of action based upon (1) the employer’s good faith belief that a qualifying patient used or possessed marijuana while on the employer’s premises or during hours of employment; (2) the employer’s good faith belief that a qualifying patient was impaired while working on the employer’s premises during the hours of employment; and (3) an injury or loss to a third party if the employer neither knew or had reason to know that the employee was impaired.

That said, there are potential pitfalls that employers should be ready to address.  For example, on one hand, the Act expressly provides that employers can continue to employ and enforce drug testing, zero-tolerance, or drug free workplace policies.  The Act provides further that it does not limit an employer’s ability to discipline an employee for failing a drug test if failing to do so would give rise to a violation of federal law (e.g. the Drug Free Workplace Act) or cause the employer to lose a federal contract.  On the other hand, however, a qualifying patient is protected from discrimination solely because the employee is a registered qualifying patient.  Should an employer be faced with a situation where it must discipline a qualified patient (especially if the discipline stems from use of medical marijuana, but not if the discipline stems from the employee’s on-the-job impairment based on use), the employer should be prepared to defend itself in a potential discrimination suit.

Moreover, employers of qualifying patients may have a duty to accommodate those patients whose underlying debilitating medical condition qualifies as a “disability,” as per Illinois state law.  Employers may need to balance accommodations with the fact that using medical marijuana may create a safety hazard under federal or state law because the employee is under the influence or in fact impaired.