Marijuana Policies in the Workplace

Published on October 31st, 2019

Employers:  Be cool with Pot Policies!

With Illinois adopting medical marijuana and looking to legalize recreational marijuana, lots of questions will be arise about what policies employers should adopt.  Imagine workers passing a joint (or a bag of spiked gummy bears) around the water cooler or sharing a joint after work.  Will employees be allowed to bring their baggie into work?  And what about refusing to hire people who test positive for weed.  These are murky waters we are wading into and it’s happening across the country.   For now, it’s probably wisest for most Illinois employers to take the high road when it comes to disciplining or refusing hire those who smoke marijuana for medicinal purposes.

Illinois employers are allowed to implement a drug-free workplace policy that prohibits employees from possessing or using marijuana in the workplace and/or being impaired during working hours. And those provisions can apply even to those who hold medical marijuana cards under the Compassionate Use of Medical Cannabis Pilot Program Act, signed into law by former Governor Pat Quinn in 2013.    However, only those employers that risk losing either a federal contract or federal funding for hiring those who use marijuana are permitted to discipline, or refuse to hire, a person who has a medical marijuana card or fails a pre-employment drug test because they use medical marijuana. The latter provision addresses the fact that marijuana stays in a person’s system up to a month after use.

And it is illegal for Illinois employers to discriminate against employees who use legal products outside the workplace.   Just as aside, what about professional athletes who consume legalized marijuana after a game?   I anticipate that this issue will be in the courts soon enought.

While courts in California, Oregon and Colorado have ruled that employers are not required to accommodate medical marijuana use, more recent rulings in Rhode Island and Massachusetts have turned out more favorably for employees. Massachusetts even opened the door to employees suing for disability discrimination if terminated for testing positive despite the fact that they use marijuana for medical reasons.

Courts in Illinois – the 20th state to legalize medical marijuana and now one of 33 with legalization of recreational marijuana possibly coming soon – have not ruled yet on the issue. And that means businesses should probably take a more conservative approach in disciplining or otherwise dealing with employees or prospective employees who have medical marijuana cards.    These cards are available to those with one of more than 40 chronic conditions such as cancer, AIDS, Parkinson’s disease and severe spinal cord injuries. About 48,000 people in the state have medical marijuana cards, and they are allowed to purchase up to 2.5 ounces of pot every two weeks.   To obtain a card, one must apply based on a physician’s certification, and users may only purchase marijuana at one of the more than 50 licensed dispensaries around Illinois.

Whether the legislature will follow the lead of lawmakers (or in some cases citizens voting on a referendum) in states like Colorado, California, Washington and Oregon remains to be seen.  Although using marijuana for medical purposes can still lead to addiction, the Illinois state legislature believed the benefits for those with medical challenges outweighed the risks for those over the age of 18.  It is unclear whether legalization of recreational marijuana will create increased usage and what the law makers will toss into the legislation.

But what does seem certain is that medical marijuana is here to stay and recreational marijuana is on the horizon.  It means that employers will be confronted with lots of new questions.   Employers are best advised to familiarize themselves with the provisions of the new laws and put into place a clear substance abuse policy and employment policies that are not discriminatory and considerate of the medical needs of employees.  Consulting with experienced Chicago business lawyers before taking any action against an applicant or employee seems like a wise move at this point of this developing story.

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