It’s hard to believe that the medical marijuana industry in Illinois only started in January of 2014. With the benefit of more than four years of experience with the program, I thought it would be helpful to revisit the topic.
First let’s get some background. The option to use medical marijuana under the Compassionate Use of Medical Cannabis Pilot Program Act is open only to those individuals suffering from one of the enumerated debilitating medical conditions defined by the Act, such as cancer, multiple sclerosis, PTSD, terminal illness and glaucoma. Significantly, the Illinois legislature passed a bill that allows medical cannabis to be used in place of prescription painkillers (e.g. opioids). Governor Rauner has not yet signed the bill.
Patients seeking admission to the program must be treated by a physician with whom the patient has a doctor-patient relationship. No prescription is required – rather the doctor must certify that the patient has one of the debilitating conditions.
Patients must submit to a background check and fingerprinting and will also have to provide their medical records to the Illinois Department of Public Health (“IDPH”). (Under the bill currently sitting on the Governor’s desk, the requirements for fingerprints and background checks are eliminated). Patients must then register with IDPH, which will issue identification cards for a fee to all registered users and designated caregivers.
Not everyone may participate in the program. Among these disqualified individuals are active duty law enforcement officers, those convicted of “certain” offenses – such as a drug-related felony - or those who have a school bus or commercial driver’s license. Minors may be patients but must have a “caregiver.”
Cannabis products can only be purchased at one of the 55 state licensed and approved dispensaries. And the products sold by those dispensaries must come from one of the cultivation centers that are licensed and heavily regulated by the State. Patients must designate a specific dispensary and may purchase up to 2.5 ounces of marijuana every fourteen days.
As of August 1, 2018 the state has approved 42,303 qualifying patients, including 305 persons under the age of 18. To put that into perspective, the industry had retail sales for July 2018 of $11,148,349 and served 24,335 unique patients who purchased 496,102 grams of dry cannabis. Total retail sales since November 2015 have been $196,056,886.
Illinois’ medical marijuana industry currently exists only as a “pilot program” that’s set to expire on July 1, 2020.
So with all of that background, whether you are an employer or just a concerned citizen, you should be asking certain questions about how all of this plays out in the real world. Here are some of those questions, or important concepts, to consider:
1. Can you terminate an employee who is enrolled in the program for failing a drug test?Although the law contemplates that employers will adopt policies to accommodate employees who are enrolled under the Act and permits employers to adopt reasonable regulations, employers are still free to drug test employees and to adopt zero-tolerance drug policies.Said another way, employers are not required to offer reasonable accommodations to employees enrolled under the Act.So the answer is yes, as long as the employer has a zero-tolerance drug policy that is applied in a non-discriminatory manner, qualifying patients may be disciplined for violation of that policy.
2. How does one determine an employee is “impaired” from the use of medical marijuana?Employers are free to discipline employees who are “impaired” on the job from the use of medical marijuana.Impairment may be established when an employee “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.” The Act provides specific examples of the kind of symptoms that would qualify.Employers must allow their employees a reasonable opportunity to dispute any determination of impairment.
3. Patients have no cause of action against an employer as long as the employer had a good faith belief that the employee was using cannabis on the job or was impaired.
4. The Act prohibits discrimination by a school, employer or landlord based solely on ones status as a qualified patient.This means that you can’t fire, or refuse to hire, someone just because s/he are registered and enrolled under the Act.However, that protection is lost if the school, employer or landlord would lose a federal benefit by virtue of the association with the patient.As a practical matter, anyone involved in the hiring process should steer clear of asking if the candidate has his or her medical marijuana card.
5. Can I refuse to hire someone who fails a pre-employment drug test for cannabis?In most instances you cannot as long as the candidate is enrolled under the Act.However, again, thereafter an employer is allowed to maintain a zero-tolerance drug policy – inclusive of drug testing.
6. Should I, as an employer, have a drug testing program for existing employees?Testing existing employees for marijuana is a tricky question because although the test may be positive, it will almost certainly be impossible to answer whether the cannabis was used during worktime (not permitted assuming a zero-tolerance policy) or during non-working hours (where use of medical cannabis is, obviously, permitted).Remember that the Act prohibits discrimination based solely on enrollment in the program – which might suggest that disciplining the employee is not permitted. For this reason, some employers are getting rid of drug testing, or are eliminating cannabis from the screening.The issue becomes even murkier when the drug test is initiated because of a workplace accident or injury.There is no clear answer as to whether a positive result for cannabis from these types of tests will allow an employer to discipline the employee without fear of a discrimination claim under the Act.This is why it has become increasingly important for employers to review their HR policies when it comes to drugs.
7. Generally speaking, employers in safety sensitive industries may want to institute, or beef up, zero-tolerance policies.On the other hand, employers in lower risk industries may decide to be more flexible and to institute a policy that accommodates off-work use of medical cannabis as long as employees are not impaired at work.In any event, given the ever-changing laws (plus the fact that cannabis use is still a federal crime), employers should seek legal counsel.