Heyl Royster

 


Heyl Royster

 

Statute In The Spotlight - Compassionate Use Of Medical Cannabis Pilot Program Act, 410 ILCS 130

8/4/14

The Compassionate Use of Medical Cannabis Pilot Program Act places new burdens on employers in managing their workplace. Please contact any of Heyl Royster's offices to discuss how to properly navigate the Act's requirements for employers.

What: Illinois' new medical marijuana law, the Compassionate Use of Medical Cannabis Pilot Program Act, went into effect on January 1, 2014. As a pilot program, it is set to be repealed on January 1, 2018.

Who: The Act permits the use of marijuana for patients with certain debilitating conditions when prescribed by a treating physician. It also provides guidelines for employers who employ these patients.

Employers: Although employers may not discriminate against employees who are registered under the Act, employers may adopt reasonable rules pertaining to consumption, storage, and timekeeping requirements for registered employees related to the use of medical cannabis. For example, employers may establish policies concerning drug testing and having a drug-free, zero-tolerance workplace and discipline employees for violating those policies.

Employees: An employee may be considered impaired, and thus in violation of a work policy, when the employee "manifests specific, articulable symptoms while working that decrease or lessen his or her performance of the duties or tasks of the employee's job position, including symptoms of the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment or machinery, disregard for the safety of the employee or others, or involvement in an accident that results in serious damage to equipment or property, disruption of a production or manufacturing process, or carelessness that results in any injury to the employee or others." However, the employee must be afforded a reasonable opportunity to contest the basis of the employer's determination before disciplinary measures are taken.

Liability Trigger: The Act expressly states that it is not to be construed so as to create a private cause of action. In that sense, it grants employers a form of qualified immunity when the employer acts with a good faith belief that the employee was impaired while working or otherwise used or possessed cannabis during work hours and when a third-party is injured and the employer had no reason to know that the employee was impaired. Certain federal laws and regulations preempt this state law, therefore employers may act so as to not violate these laws and regulations. For example, certain employees, such as school bus drivers and those with commercial driver's licenses, may not use medical cannabis.

How to Proceed: Employers must tread carefully when relying on drug tests in disciplining employees. Cannabis is not like other drugs since its active ingredient, THC, stays in one's system for up to 30 days. The employer should have a good faith belief that the employee was impaired on the job and document all of the reasons which support that good faith belief. Employers are urged to consult with an attorney before taking disciplinary action in the context of a registered medical cannabis user as the courts have not yet interpreted the Act.