Medical marijuana law has limits in the workplace

Published: Sunday, Aug. 11, 2013 5:30 a.m. CDT

The passage of House Bill 1 earlier this month has far-reaching implications that will impact everything from traffic law to the regulations governing how to cultivate, dispense, and obtain cannabis when the law goes into effect Jan. 1.

Included within the gamut of this new law is how businesses and employers will be affected by the legislation.

A primary concern is to what extent businesses can regulate possession or use of medical marijuana on the business premises. The bill provides that private businesses can prohibit the medical “use” of cannabis on their property by anyone, and landlords can prohibit the “smoking” of cannabis on leased property.

Employers also are allowed to maintain and enforce zero tolerance and drug-free workplace policies with their employees. And despite some ambiguous language in other sections of the new law, the bill states the new law would not give an employee a legal cause of action against an employer who acted on a “good faith belief” the employee used or possessed cannabis at work in violation of company policy.

As such, there is nothing in the bill that would restrict an employer from outright prohibiting the use or possession of cannabis by its employees while working.

There are also provisions that would allow an employer to discipline an employee who is not properly performing job functions due to being under the influence of medically prescribed and legally obtained cannabis. A major caveat is employers must still be careful to not have policies or other employment practices that would be considered discriminatory against employees who are legally licensed to use medical marijuana.

While what constitutes discrimination is not clearly defined, as with other legal contexts, any policy that singles out medicinal cannabis use or would be seen as an intentional effort to fire or not hire people who are licensed under the bill to use cannabis would likely be considered discrimination and against the law.

Another caution is that people who are eligible to obtain and use medical marijuana generally have serious health conditions for which the employee may be considered to have a legal disability.

Even though the bill gives a wide berth to employers to maintain and enforce drug policies, this bill does not preempt all other employment law. Employers should consider potential overlap with other laws, such as the American with Disabilities Act, and seek legal counsel before making changes to policies in light of this new bill.

Employers will likely have some time to consider their options in addressing medical cannabis in the workplace. Despite the bill becoming effective the beginning of 2014, several state departments – including the Department of Agriculture, the Department of Professional and Financial Regulation, the Department of Health, and the State Police – must implement procedures and coordinate efforts before the first cultivation and dispensing centers can be established. A quick turnaround time to coordinate all of the necessary requirements is several months, based on other states that have implemented medical marijuana laws.

For those entrepreneurs considering getting into the business of cultivating or dispensing cannabis, there are a few requirements beyond that of starting or operating any other business.

The bill provides several registration requirements, including background checks of all personnel and corporate officers/directors, security measures (which have to be approved by the state police for cultivation centers), and several other requirements that will be set out by some of the state departments previously mentioned.

There is also a limit to how many licenses will be issued to operate cultivation centers and dispensaries. There can be no more than 22 cultivation centers in the state (one in each state police district), which means that there can only be one center in the region comprising DeKalb, DuPage, Kane, Lake and McHenry counties.

Dispensary licenses are similarly limited to 60 spread throughout the state, so as to provide any resident with license to use medical marijuana a reasonable means to obtain legal cannabis.

• Brad Stewart is an attorney with Zukowski, Rogers, Flood & McArdle in Crystal Lake. Stewart was valedictorian of his law school class and devotes most of his practice to corporate and local government law. He can be reached at bstewart@zrfmlaw.com.      

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