By: Maryjo F. Pirages Reynolds
Illinois recently passed the Compassionate Use of Medical Cannabis Pilot Program Act. The Act contains several employment provisions, which should trump the Illinois Right to Privacy Act’s more general prohibition of discrimination on the basis of an employee’s off duty use of lawful products.
Under current federal law, employers are not required to allow medical marijuana use, on or off duty, as a reasonable accommodation under the Americans with Disabilities Act. The issue was addressed by the Ninth Circuit in 2012 in James v. City of Costa Mesa. The U.S. Supreme Court denied a request for further review. In Costa Mesa, the Court held that medical marijuana use is not protected by the ADA because the ADA defines “illegal drug use” by reference to federal law rather than state law, and federal law does not authorize medical marijuana use.
While there is a possibility Illinois courts will rule differently, we expect the result to be the same under the Illinois Human Rights Act, which prohibits all Illinois employers from discriminating on the basis of disability, but provides a person’s “illegal use of drugs” is not a disability. Courts in other states have considered accommodation for medical marijuana under state discrimination laws and concluded it is not required because the use of marijuana remains illegal under federal law.
The medical marijuana law states nothing “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”. Courts in other states with laws permitting enforcement of such polices have upheld termination of employees who test positive for drugs resulting from medical marijuana use. However, it is possible a registered employee would claim enforcement of a zero tolerance policy is “discriminatory” when use of medical marijuana otherwise would be a reasonable accommodation. Discrimination in hiring and promotions is also prohibited on the basis of status as a registered patient or caregiver unless failing to do so would result in the employer violating federal law or losing monetary or licensing-related benefits under federal law. For example, federal law prohibits the use of medical marijuana for school bus drivers and pilots.
The new Illinois law expressly provides an employer may discipline a registered employee when “impaired”, i.e., the employee manifests specific, articulable symptoms while working that decrease job performance. The Illinois law also provides that “if an employer decides to discipline a qualified patient based upon impairment on the job, the employer must provide the employee with a reasonable opportunity to contest the basis of the determination”.
While it appears employers may maintain zero tolerance drug-free workplace policies, to avoid being a test case under Illinois law, an employer should not discriminate on the basis of an applicant or employee’s medical marijuana registration status, and may wish to use the “interactive process” to determine whether allowing a registered employee to continue working while using medical marijuana is a “reasonable accommodation”. Under this approach, an employer would not be required to allow a CDL driver to work while using medical marijuana, and would not be required to allow any employee to work who meets the definition of “impaired”, but might decide to accommodate an employee by granting leave if there is a need for the temporary use of medical marijuana.
Maryjo Pirages is an associate attorney of the firm and a member of the Employment & Labor Law, Trusts & Estates, and Corporate & Business Groups. Maryjo counsels and represents employers in a range of employment matters, including statutory and administrative regulations compliance, contracts, and employee handbooks and policies. Maryjo’s goal is to work hand-in-hand with employers so that they may proactively implement and stay up-to-date with their policies in order to limit their liability and exposure. Additionally, she assists individuals and families in their estate planning and administration.