On Aug. 1, 2013, Gov. Patrick Quinn signed into effect Illinois’ version of state laws allowing the use of marijuana for medicinal purposes. Entitled the “Compassionate Use of Medical Cannabis Pilot Program Act,” Illinois now joins almost two dozen other states who allow marijuana use for medicinal purposes. Touted as one of the most restrictive medicinal marijuana use laws in the nation, the law is a pilot program and will be automatically repealed after four years.
Based upon legislative findings that show the therapeutic value of marijuana use, the law allows registered users to purchase up to 2.5 ounces of marijuana every 14 days from a registered, licensed dispensary which obtains the drug from a registered, licensed intrastate cultivation center. Various provisions of the law will be enforced by the Departments of Public Health, Agriculture, and Financial and Professional Regulation. The law provides physicians, registered patients and caregivers, and registered dispensing organizations and cultivation centers immunity from arrest and prosecution or penalty. The law prohibits, among other things, the possession or use of cannabis in vehicles, on school grounds or in public places.
While the statute creates uncertainties for employers, certain things are clear. An employer is not required to allow an employee to possess or use medical marijuana while at work or on the employer’s property. An employer is not required to allow an employee to work while impaired, and an employer may discipline an employee for being impaired if it has a good faith belief that the employee is impaired, or if not doing so would place the employer in violation of federal law or would cause the employer to lose a federal contract or funding. It is also clear that the employer is permitted to discipline the registered user employee to the same extent that it would discipline other employees who use controlled substances or alcohol while at work, or who are impaired at work. Unlike the medical use laws of other states, such as Maine and Arizona, the law attempts to define impairment.
It would also seem clear that an employee who is a registered user is not a person with a disability under the meaning of the Americans with Disabilities Act (ADA), because a protected, disabled individual under the ADA is not one who uses drugs unlawful under federal law. However, the underlying medical condition requiring the medical use of marijuana would probably be a disabling condition under federal law in its own right. Moreover, a claim of unlawful discrimination could be posited upon the employer’s perception that the employee has a disability. The employee would have at least protections under the Illinois Human Rights Act.