The Medical Cannabis Act and the Opioid Alternative Program Are Bringing New Challenges and Unchartered Territory to Illinois Employers

A Brief Background of the Medical Cannabis Act

Illinois’ medical marijuana law, effective January 1, 2014, legalized the use of marijuana for medical, not recreational, purposes, and was effective through 2018 as part of a Pilot Program.  As of June 30, 2018, the Illinois Department of Public Health approved applications for approximately 40,000 qualifying patients.  Every year since 2104, the amount of qualifying adult patients has increased steadily from 2,663 patients in 2015 to 39, 808 patients in 2018.

The Act allows registered qualifying patients in Illinois with “debilitating conditions” to legally obtain prescriptions for marijuana.  A registered qualifying patient may purchase up to 2.5 ounces of medical cannabis during 14-day period. However, if a larger supply is needed, a registered patient’s physician may submit a waiver and a $25 check and if granted, the supply can be increased from 2.6 top 14 ounces.

What does the Medical Cannabis Act Mean for IL Employers?

Registered patients are protected under the Act from “arrest, prosecution, or denial of any right or privilege, including but not limited to civil penalty or disciplinary action by an occupational or professional licensing board, for the medical use of cannabis in accordance with this Act.” Indeed, there is a rebuttable presumption that a registered qualifying patient is engaged in the medical use of cannabis if he or she is in possession of a valid registry identification card and is in possession of an amount of cannabis that does not exceed 2.5 ounces in a 14-day period. 410 ILCS 130/40. However, there are exceptions in which an individual can be penalized for undertaking any task under the influence of cannabis when doing so would constitute negligence, or professional malpractice or misconduct. In addition, certain professions cannot use medical marijuana, including active duty law enforcement officers, correctional officers and probation officers, firefighters, and those who have a school bus permit or commercial driver’s license.

The most important take away from The Act is that it does not prohibit an employer from adopting reasonable regulations concerning the consumption, storage, or timekeeping requirements for qualifying patients related to the use of medical marijuana. It also does not prohibit an employer from enforcing a policy on drug testing, zero-tolerance, or a drug-free workplace, so long as the policy is applied in a “nondiscriminatory manner.” 410 ILCS 130/50.  Employers may discipline a qualifying patient-employee who appears to be impaired while working and suffers decreased performance capabilities.  However, the Act provides that the employee must be given a reasonable opportunity to contest the basis of the determination that he or she was impaired.

What is the Alternative to Opioids Act?

On August 28, 2018, the Alternative to Opioids Act of 2018 was signed into Illinois law. The act established the Opioid Alternative Pilot Program, which allows certain patients, who otherwise would or could be prescribed opioids, or have already been prescribed opioids, access to medical cannabis as an alternative.  This is significant because 52,000 people currently qualify for medical cannabis in Illinois and according to the state Department of Public Health and almost 2.5 million Illinois residents had an opioid prescription in 2017.

Under this program, an individual does not need to have a debilitating condition as defined by the Compassionate Use Act or the associated rules, no longer will any applicants have to be fingerprinted and undergo criminal background checks, and those who complete an online application with doctor’s authorization will get a provisional registration to buy medical cannabis while they wait for state officials to make a final review of their request. Please note that while the procedures have changed, the law under the Medical Cannabis Act remains unchanged.

As discussed above, zero-tolerance policies are allowed. Further, under the Illinois Workers Compensation Act, an employee is barred from recovering compensation for work injuries caused by his or her intoxication, including impairment due to consumption of marijuana.  Finally, OSHA Section 1904.35(b)(1)(iv) does not prohibit employers from drug testing employees who report work-related injuries or illnesses so long as they have an objectively reasonable basis for testing, and the rule does not apply to drug testing employees for reasons other than injury-reporting.

How does this affect employers’ work comp liability?

As to be expected, this raises many important questions for employers, including:

1. Can an employer still be entitled to the presumption, even though drug use may have been authorized and/or lawful?

2. How does the employer go about preserving objective measurable use?

3. If the injured worker has work restrictions that can be accommodated by the employer but for the “zero tolerance” policy, is the employer still obligated to pay for TTD?

4. If the injured worker can return to work, unrestricted, but for worker's need for ongoing cannabis use and the employer has a “zero tolerance” policy—is TTD owed?

5. If employee is prescribed medical marijuana to relieve the effects of a work-related injury, is the employer obligated to pay?

ASA Law Group continues to track developments regarding medical marijuana, the Opioid Alternative Program, and the anticipated legalization of recreational marijuana.  For more information on these cutting-edge topics, “answers” to the above questions, and engaging discussion, please contact us about attending our next firm seminar!

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