Heyl Royster

Time is of the Essence: Review Your Workplace Policies Before Medical Marijuana is Available in IL

October 16, 2014

with contributions from Shawnnell T. Brown

Consider the following scenario: First, Jane Henry, an epileptic, has been an employee at your company for one year. Jane takes medical marijuana as recommended by her physician to alleviate the symptoms associated with her condition. Jane tested positive for marijuana during a routine drug test. Although illegal under federal law, the use of medical marijuana is protected in Illinois if recommended by a licensed physician. Jane has never appeared impaired at work and has never smoked on the job, to your knowledge. John Smith is also an employee at your company. John also tests positive during a routine drug test. Unlike Jane, John does not have an underlying medical condition or a permit to use medical marijuana. If your company has a zero tolerance drug-free workplace policy, how do you handle these scenarios?

Assume you terminate both Jane and John because they violated your drug-free workplace policy. Jane challenges her termination arguing that she is protected under the Americans with Disability Act, 42 U.S.C. § 12101 et. seq. ("ADA") and the Illinois Human Rights Act, 775 ILCS 5/1 et. seq. ("IHRA"). Jane also files a claim for unemployment benefits. John neither challenges his termination nor does he file a claim for unemployment benefits. What will your company be liable for?

This scenario highlights the complex legal issues that all Illinois companies will face in the next few years.

Illinois Law

On January 2014, medical marijuana became legal in Illinois under the Compassionate Use of Medical Cannabis Pilot Program Act. 410 ILCS 130/1 ("Act"). Illinois joined twenty-three other states and the District of Columbia when they decriminalized the possession of marijuana for medical use. The Act permits individuals diagnosed with an approved debilitating condition to use medical marijuana. The Act allows employers to restrict or prohibit the medical use or possession of marijuana on its property. Under the Act an employer is permitted to discipline an employee who is a registered qualified patient if that employee violates a written policy prohibiting drug use. The legislature was clear that "[n]othing in this Act shall prevent a private business from restricting or prohibiting the medical use of cannabis on its property." 410 ILCS 130/30(h). Additionally, an employer is permitted to adopt reasonable regulations relating to the use of medical marijuana, and enforcing policies concerning drug testing and disciplining employees who fail, if failing would put the employer in violation of federal law.

Under federal law marijuana is still categorized as a Schedule 1 substance under the Controlled Substance Act ("CSA"). 21 U.S.C. § 801. The conflict between federal and state law makes it difficult for employers and employees to understand what rights they have with respect to medical marijuana. Although the Department of Justice has not pursued registered medical marijuana patients in other states, the law remains in effect.

In addition to clashing with federal law, there are areas among Illinois law that have yet to be sorted out and are likely to lead to litigation. For instance, the IHRA protects employees from discrimination in the workplace on the basis of a disability. The IHRA may require employers to accommodate registered patients' medical conditions and treatment. However, medical marijuana is still categorized as an illegal drug under federal law, therefore, the duty to accommodate may not be protected under the ADA.

What does that mean for Jane in the scenario outlined above? In order to answer that question we must explore what actions the ADA protects and what actions are excluded from protection.

Federal Law: Americans with Disabilities Act

An individual prescribed with medical marijuana likely has an underlying condition that limits a major life activity according to the definition of the ADA. The ADA bars employers from discriminating against employees or applicants, or otherwise qualified individuals, on the basis of disability. The ADA defines "disability" as having a "physical or mental impairment that substantially limits one or more major life activities of such individual." 42 U.S.C. § 12102(1)(A). A major life activity may include working, speaking, breathing, learning, concentrating, and major bodily functions. 42 U.S.C. § 12102(2)(A). The ADA likewise provides that "illegal drug users" are categorically excluded from the ADA's protection of an "individual with a disability" when the employer acts on the basis of such illegal use. 42 U.S.C. § 12210(a). While the underlying condition may be protected by the ADA, it is not clear if allowed treatment, that may be legal in some states and illegal in others, for that condition will also receive the same protection.

The ADA states that a qualified "individual with a disability" shall not include any employee or applicant "who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use." 42 U.S.C. 12210(a).

Additionally, the ADA provides that employers may prohibit the illegal use of drugs at the workplace. Under the ADA:

"[I]llegal use of drugs means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act. Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law." 42 U.S.C. § 12210(d)(1).

An employee like Jane is likely to admit that medical marijuana is illegal under the Controlled Substances Act. However, Jane is likely to argue that her medical marijuana use falls under the "drug taken under supervision by a licensed health care professional" exception because she possesses authorization from a physician. However, the Ninth Circuit Court of Appeals held in James v. City of Costa Mesa that the exception to the exclusion for illegal drug use requires that the drug use both be "under supervision" and "be authorized by . . . Federal law." 700 F.3d 394, 398 (9th Cir. 2012). The court reasoned that the plaintiffs' interpretation of the exception for "use of a drug taken under supervision by a licensed health care professional" would permit a doctor to authorize the use of any controlled substance – including heroin or methamphetamine – allowing an individual to evade the ADA's illegal drug exclusion. Further, the court in Barber v. Gonzales rejected the argument that use taken under medical supervision is a separate and distinct exception. No. CV-05-0173-EFS, 2005 WL 1607189 (Wash. July 1, 2005). It is unlikely Jane would be successful in her claims under the ADA and IHRA despite taking medical marijuana under the supervision of a physician. What about Jane's unemployment claim?

Unemployment Benefits

Illinois unemployment benefits law provides that a former employee terminated for misconduct in connection with work is ineligible to collect unemployment benefits. 820 ILCS 405/602(A).Misconduct is defined as the "deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual's behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit." Id. In Illinois, failing to pass drug tests on two occasions, despite a warning, constitutes misconduct whether there are safety considerations or not. Robinson v. Dept. of Employments Security,, 264 Ill. App. 3d 659, 637 N.E.2d 631 (1st Dist. 1994). Alcohol or drug use either on the job or such that the employee is impaired at work constitutes misconduct. Jackson v. Board of Review of the Dept. of Labor, 105 Ill. 2d 501, 475 N.E.2d 879 (1985). Drug or alcohol use that neither occurs on the job nor affects one's work constitutes misconduct if a urine or blood test taken at work reveals trace amounts of the drugs and the presence of drugs violates an employer rule. McAllister v. Board of Review of the Dept. of Employment Security, 263 Ill. App. 3d 207, 635 N.E.2d 596 (1st Dist. 1994). An employee like Jane would be ineligible to collect unemployment benefits despite her authorization to use medical marijuana under state law if she fails a drug test and is terminated under her employer's zero tolerance drug policy. Similarly, John, who also failed his drug test, would be ineligible for claiming unemployment benefits.

As with any new law, amendments to the Act and changes to other associated laws, like the IHRA, will develop over the next few years. As applicants for dispensaries and cultivation centers flock to Springfield, Illinois companies should use the remaining months before the first applications are approved to review their drug testing policies. It is critical that all company handbooks and drug testing policies conform to the Compassionate Use of Medical Cannabis Pilot Program Act. In addition, it is an opportune time to revisit your drug-free workplace policies with all employees and consider additional training for your management and human resource personnel.

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