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Medical Marijuana In Illinois: Can An Employer Still Enforce A Zero Tolerance Policy?

Deanna L. Litzenburg, Attorney and Shareholder with Mathis, Marifian and Richter, Ltd.

As medical marijuana laws are increasingly passed by states, a host of legal questions are cropping up in their wake. One such question is what effect these laws may have on an employer's drug-testing or drug-use policies.

Many states' compassionate use laws simply do not address an employee's use of medical marijuana and any rights an employer may have to terminate or otherwise penalize an employee for conduct that violates existing employer policies. In states such as California, Colorado, Oregon and New Mexico, whose compassionate use laws are silent on this issue, the courts have been answering the question in favor of employers. In essence, courts are ruling that employers may still enforce their drug testing and drug use policies and are not affirmatively required to provide reasonable accommodations for the use of medical marijuana by their employees. This is because marijuana is still a federally banned substance under the Controlled Substances Act and requiring employers to accommodate an employee's use of medical marijuana would be requiring employers to permit conduct that is expressly prohibited under federal law.

In Illinois, the legislature cleared up the question when it drafted its medical marijuana bill, the Compassionate Use of Medical Cannabis Pilot Program Act (410 ILCS 130), by including provisions specifically outlining the rights of employees and employers. §50 of the Act states that nothing in the Act shall prohibit an employer from enforcing policies concerning drug testing, zero tolerance or a drug free workplace as long as such policies are applied in a nondiscriminatory manner. What this means is that employers may still terminate employees for the use or possession of marijuana even if they are a "registered qualifying patient" under the Act if such use or possession violates an employer's illegal drug policies.

The Act further attempts to protect employers by limiting their liability in some circumstances. §50 states that nothing in the Act should be construed to create or imply a cause of action against an employer for (1) actions based on the employer's good faith belief that an employee used or possessed cannabis while on the employer's premises or during the hours of employment; (2) actions based on the employer's good faith belief that an employee was impaired due to the use of medical marijuana while working on the employer's premises during the hours of employment; or (3) injury or loss to a third party if the employer neither knew nor had reason to know that the employee was impaired.

The Act does provide some protections for employees, as §40 prohibits discrimination by employers solely based on the employee's status as a registered qualifying patient, although even this comes with the caveat that an employer may still refuse to hire someone based on the status if hiring such a person would mean the loss of a federal benefit to the employer.

If employers or employees have questions about the effect of Illinois' Compassionate Use Act on their hiring or firing practices, or to review any current or potential drug-testing or drug-use policies, they should seek the advice of an employment law attorney.

Professional Services Disclaimer: Please note that the information presented here is as an educational service, and while it contains information about legal issues, it is not legal advice. No warranty is made regarding the applicability of the information presented to a particular client situation, and the information set forth is not a substitute for original legal research, analysis and drafting for a particular client situation.

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