Medical Marijuana and Employment Practices

Last September, Illinois became the 21st state to adopt a medical marijuana law. The law is a four-year pilot program that will assess the value of legalizing the use of marijuana for medical purposes.

Under the new law, users may register with the Illinois Department of Public Health as a patient with a legal prescription to use marijuana for medicinal purposes. The registered user may purchase up to 2.5 ounces of marijuana every 14 days from a state licensed dispensary.

The law is titled the Compassionate Use of Medical Cannabis Pilot Program Act. It specifically states that nothing in the 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.”The Act protects an employer’s right to discipline a medical marijuana user for violating a workplace drug policy, and it allows employers to follow regular drug testing guidelines that are promulgated by federal agencies.

We interpret this language in the Act to mean that employers must treat medical marijuana the same way they treat other lawfully prescribed medications. For example, if an employee is unable to complete job assignments or is violating absenteeism policies, the employer may lawfully discipline that employee in the same way that it might discipline a person who is on a legally prescribed medication.

In cases arising in other states, courts that have issued decisions in medical marijuana cases have sided with employers. For example, in Michigan, a federal appeals court stated that a decision in favor of a medical marijuana user:

“…could potentially prohibit any Michigan business from issuing any disciplinary action against a qualifying patient who uses marijuana in accordance with the Act. Such a broad extension of Michigan law would be at odds with the reasonable expectation that such a far-reaching revision of Michigan law [had been] expressly enacted.”1

Washington, California, Oregon and Montana have all ruled in similar fashion.

Illinois has a “lawful activities statute”which makes it illegal for employers to take action against employees who use lawful products outside the workplace. This law prohibits employers from taking adverse action against an employee or potential employee because they use lawful products outside of the workplace during non-work hours. This statute, 820 ILCS §55/52 , appears to protect use of medical marijuana as well. But marijuana remains an illegal schedule 1 narcotic under federal law. And, adding a further complication, medical marijuana users are not protected under the Americans with Disabilities Act because the statute does not cover employees and applicants currently using illegal drugs.

The intersection of employment law and practice, and the use of medical marijuana is likely to be subject to litigation before the boundaries settle. We suggest that you review your personnel policies that deal with drug testing and prescription drug use in the workplace. And, where use of medical marijuana might be at issue in your hiring, disciplining or termination practices, we suggest that you consult with counsel before taking action that might trigger a legal challenge.

  1. Casias v. Wal-Mart, 695 F.3d 428 (2012). It noted that Michigan’s medical marijuana law only gave medical marijuana users a limited protection from criminal prosecution by the state and protections from other adverse state actions only in certain situations.
  2. 820 ILCS 55/ states: Sec. 5. Discrimination for use of lawful products prohibited. (a) Except as otherwise specifically provided by law and except as provided in subsections (b) and (c) of this Section, it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours.

– Kathryn M. Vanden Berk, J.D.

This article is provided for general information and should not be relied upon as legal advice for a specific situation.  If you are in need of specific advice or legal representation, please do not hesitate to contact us.

©2014 Bea & VandenBerk