In Illinois, the “medical marijuana” law prohibits employers from discriminating against an individual due to the individual’s status as a “medical marijuana” cardholder, or because the individual tested positive for marijuana (unless it can be shown that the individual used, possessed or was impaired by marijuana on the employer’s premises or during the hours of employment). However, employers need not comply with the Illinois law if compliance would cause the employer to violate federal law or lose a monetary or licensed related benefit under federal law or rules. Employers in Illinois are left with a difficult choice. They must decide whether: (1) they will risk disregarding the Illinois law because marijuana remains illegal under federal law and state law cannot require that it be accommodated, and therefore, it still is appropriate for employers to prohibit its use, possession, etc., and to take disciplinary action against those who test positive for marijuana; or, (2) comply with the Illinois “medical marijuana” law.
Even if an employer chooses to comply, the Illinois law provides that “nothing in this Act shall prohibit an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner.” At this time, it is unclear how Illinois courts will interpret this provision. Taken together with Illinois’ anti-discrimination provision, a court could find that disciplining or terminating an employee who is a medical marijuana cardholder just for testing positive for marijuana (absent any accompanying impairment) is applying the policy in a discriminatory manner. However, it would seem appropriate for an employer who has “reasonable suspicion” that an employee is under the influence of drugs at work to test that employee and if there is a positive test result for marijuana, to take disciplinary action, even if the employee produces a valid medical marijuana card. It is important that the basis for the suspicion be documented carefully and contemporaneously. In order to treat all employees consistently, employers may wish to take the position that a positive test result – coupled with the employee’s behaviors leading to the “reasonable suspicion” determination – form a sufficient basis for taking disciplinary action. The marijuana test results should be based on cutoff levels no less than those prescribed for testing by the Substance Abuse and Mental Health Services Administration of the U.S. Department of Health and Human Services, and the U.S. Department of Transportation (49 C.F.R. Part 40). Additionally, employers need not comply with the Illinois law if compliance would “put the employer in violation of federal law or unless failing to do so would cause it to lose a monetary or licensed related benefit under federal law or rules.” If an employer makes a decision to discipline or terminate an employee who is a medical marijuana card holder on account of him or her testing positive for marijuana following a reasonable suspicion determination, the employer must provide the employee with an opportunity to contest the employer’s bases for making the reasonable suspicion determination. Such notice should be provided to the employee when he or she is informed of the discipline and/or termination. Although the law does not specifically create an exception for safety sensitive positions (and therefore there is risk under state law if an employer takes an adverse action against the employee based on the use of medical marijuana), if an employee comes forward and voluntarily discloses he or she is a “medical marijuana” cardholder, an employer may consider engaging in an “interactive dialogue” with the employee in order to make an “individualized assessment” as to how the employee’s marijuana use will impact his or her ability to perform his or her job duties safely. Clients may also wish to consider requiring a physical examination by a physician as part of the assessment for a safety-sensitive employee. Further, in Illinois, an employer engaged in drug testing should have the medical review officer report to the employer whether the employee presented a medical marijuana card (as opposed to verifying the result as an automatic negative), so that the employer may then make a determination as to how it wants to proceed.
As always please contact your Human Resource Business Partner if you have questions.
The Cannabis Act prohibits an employer from refusing to hire an applicant because of his/her status as a qualifying patient. If an applicant tests positive for marijuana, but produces a valid “medical marijuana” card to explain the positive test result, under the Cannabis Act, an employer could not refuse to hire the applicant. An employer may find compliance with the law to be untenable if it hires applicants for “safety-sensitive” positions. Until there is additional guidance, our recommendation is that client’s follow state law unless they are exempt.
The three departments responsible for enforcing the provisions of the Act (the Departments of Health, Agriculture, and Financial and Professional Regulation) have until April 30, 2014, to develop and publish rules in accordance with their respective responsibilities. We will continue to keep clients updated on any clarifying regulations.
As always please contact your Human Resource Business Partner if you have questions.