Thursday, September 26, 2013

Employers Should Prepare for New Medical Marijuana Law

This summer the Illinois Legislature passed Public Act 098-0122, “an act concerning alternative treatment for serious diseases causing chronic pain and debilitating conditions.“  The short title of the act is the “Compassionate Use of Medical Cannabis Pilot Program Act.”  I think most citizens know and refer to it as Medical Marijuana.

The law takes effect on January 1, 2014.  This is the time that employers should begin to prepare for the new law.  The Act is 211 pages long and you can download a copy of it at:  http://www.ilga.gov/legislation/publicacts/98/PDF/098-0122.pdf

Under the Act, registered users of medicinal marijuana will be allowed to purchase up to 2.5 ounces of marijuana every 14 days from a state licensed dispensary. The Act contains specific provisions regarding the workplace and raises questions and issues for employers regarding the prescribed use of marijuana by employees while on the job.
 
There are two pertinent sections of the Act that employers need to be familiar with.  Section 40 deals with discrimination and states that a school, employer or landlord cannot discriminate against a person solely for his or her status as a registered qualifying patient. 
 
Section 50 of the Act includes specific requirements and some protections for employers, including:

A.   Nothing in this Act shall prohibit an employer from adopting reasonable regulations concerning the consumption, storage, or timekeeping requirements for qualifying patients related to the use of medical cannabis. 

B.   Nothing in this Act shall prohibit an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner. 

C.   Nothing in this Act shall limit an employer from disciplining a registered qualifying patient for violating a workplace drug policy.   

D.   Nothing in this Act shall limit an employer's ability to discipline an employee for failing a drug test if failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or funding.   

E.   Nothing in this Act shall be construed to create a defense for a third party who fails a drug test.  

F.    An employer may consider a registered qualifying patient to be impaired when he or she 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. If an employer elects to discipline a qualifying patient under this subsection, it must afford the employee a reasonable opportunity to contest the basis of the determination.  

G.   Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for:  

1.    actions based on the employer's good faith belief that a registered qualifying patient used or possessed cannabis while on the employer's premises or during the hours of employment;   

2.    actions based on the employer's good faith belief that a registered qualifying patient was impaired while working on the employer's premises during the hours of employment; 

3.    injury or loss to a third party if the employer neither knew nor had reason to know that the employee was impaired.  

H.   Nothing in this Act shall be construed to interfere with any federal restrictions on employment including but not limited to the United States Department of Transportation  

The new law goes into effect on January 1, 2014, so employers have just a few more months to prepare.  Employers should become familiar with the new law, and as always, consult with legal and HR professionals. 

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