What Employers Need To Know About Medical Marijuana – Part II

We previously wrote about how physicians and medical practices should handle changes to medical marijuana laws. In this article, we discuss how employers, including physicians and medical practices who hire employees, should handle the legalization of medical marijuana in their employment practices and procedures.

At the federal level, marijuana is considered a Schedule I drug and illegal under the Controlled Substances Act. The federal government still considers it dangerous with a high potential for abuse and does not recognize it for medical use. In that vein, federal protections for employees who use medical marijuana are virtually non-existent. The Americans with Disabilities Act does not recognize use of medical marijuana as a treatment that employers must accommodate, and the Occupational Safety and Health Administration still encourages employers to maintain and enforce a drug free workplace.

Illinois legalized medical marijuana for qualified, registered patients under the guidance of a health care provider to treat a variety of debilitating health conditions through a pilot program. Illinois law prohibits employers from discriminating against registered patients solely on the basis of their status in the pilot program. However, Illinois employers may still take action (fire, suspend, demote, etc.) against an employee based on the “good faith belief” that the employee was impaired by marijuana at work. Illinois does not provide an employee with a cause of action against an employer if the employer were to wrongly take an employment action against the employee for his or her use of marijuana.

Because this is an evolving area of law and because there is a conflict between federal law and state law, employers should proceed with caution, such as:

• Proactively determine how you want to handle drug testing and zero tolerance policies. Update employee handbooks and manuals to clearly state your policies.
• Consistently apply drug policies, including drug testing policies and drug-free workplace policies. This is especially essential to avoid potential discrimination lawsuits.
• Train management on reasonable enforcement of drug testing policies. Proactively determine what it means for an employee to “look” or “appear” impaired and determine how that impairment can impact work performance and safety. Utilize reasonable suspicion for drug testing. This will also mitigate the risk of discrimination lawsuits.
• Do not automatically terminate the employment of employees who fail drug tests. Evaluate on a case-by-case basis to determine the effect of the drug use on the job and whether the employee has shown signs of being under the influence at work.
• Give employees who may seem impaired due to marijuana usage an opportunity to explain their behavior. Engage in dialogue with an employee prior to taking action against the employee.
• In regards to hiring employees, employers may continue to ask job applicants if they utilize any drugs that may prevent applicants from safely performing job duties. Employers may still decline to hire applicants who affirmatively answer this question.
• At this point, the Americans with Disabilities Act and the Illinois Human Rights Act do not require employers to accommodate medical marijuana usage. However, employers should continue to engage in dialogue with employees regarding other workplace accommodations for the associated medical conditions.
• Continue to monitor Illinois law and the laws in other states in which you conduct business so you can effectively review and revise policies.

Karuna Brunk is an experienced labor and employment attorney. Contact her at Malecki & Brooks Law Group at +1.630.948.4807 to review your employment policies or for advice on employment disputes.