Medical Marijuana: How Does It Affect Your Workplace?

Today officially marked the first day that medical marijuana is now available for sale in the state of Illinois…so now that it is really a reality, what does that mean for employers?

  • Will there be this huge influx of issues to address and deal with?
  • How does this affect our workplace safety?
    Do we have to re-write our Employee Handbooks with a new drug and drug testing policy?

Before your mind starts spinning in circles, let’s look at some facts to help answer those questions:

There are over 20 states that currently have some sort of legislature in place concerning the legal marijuana for medical use only.  In Illinois, the Compassionate Use of Medical Cannabis Pilot Program Act (“Cannabis Act”) allows patients diagnosed with one of 42 specific, debilitating medical conditions to use medicinal marijuana.  Examples include: cancer, glaucoma, positive status for HIV, AIDS, hepatitis C, Crohn’s disease, rheumatoid arthritis, closed head injury, post-concussion syndrome, Parkinson’s disease, MS, severe fibromyalgia, and spinal cord injuries.

State medical marijuana laws do not completely legalize the manufacture, distribution and possession of marijuana, which remains illegal under federal law…and here is where some of the hype and confusion needs to be talked about.

To be a part of this program, patients have to go through an application process.  Only persons aged 18 or over with specific medical conditions may apply and they may not have a felony drug conviction in his or her background.  Once they are “approved” they are issued a “Registry ID card” that then allows them to purchase medical marijuana from one of the registered dispensaries.

There are certain jobs that the Cannabis Act prohibits from being a part of the program: law enforcement officers, firefighters, correctional officers, school bus drivers or anything requiring a commercial driver’s license.

Those that qualify are not allowed, by law, to use the medical marijuana at their place of employment or used in public or in any location where smoking tobacco is forbidden by the Smoke Free Illinois Act.  The Act pretty much restricts use of medical marijuana to the approved patient’s personal residence.

The Cannabis Act does NOT prohibit an employer from enforcing a policy concerning drug-testing, zero tolerance or a drug-free workplace.  It also does not permit any person to engage in any task while under the influence of medical marijuana that could potentially impair their ability to carry out their job or endanger the safety of themselves or others in the workplace.  The best way to look at this: The Employer should treat a medical marijuana patient like any other employee who is on prescribed medication.

Employers can accommodate a worker’s medical marijuana use but aren’t required to.  Since medical marijuana remains an illegal drug under Federal law, its use is not protected under the Americans with Disabilities Act (“ADA”).  It will come down to how you, the Employer, will want to handle the situation…however, the key to remember is to create consistency in your decision or new policy.  Risk and liability are the two issues that the Employer will need to personally identify to determine the best course of action.  Many employment attorneys have been reporting that most employers are not changing their workplace policies, in particular those with a Drug-Free Workplace policy…and for the most part, the way the Act appears to be written there isn’t a quick need to.

What the Cannabis Act does make clear is that an employer may not penalize a valid medical marijuana card-holder solely because he or she is in the registry and is entitled to use cannabis as medicine.  The employer can discipline an employee for use while on the job if it violates company policy or adversely affects their work performance (including safety issues).

The issue that is left outstanding and should be a concern at the back of everyone’s mind: Workers’ Compensation.

How the insurance companies intend on dealing with employers with employees covered under The Cannabis Act seems to still be unsure…and this is where employers may run into issues.  This will not only potentially affect renewal rates (depending on whether or not the use of medical marijuana comes up when a case is filed) but on how the employee may face challenges in receiving benefits or compensation as a result.  While medical marijuana is not the first “medication” with side effects that can cause performance problems for an employee (and one would assume the same standards would apply), its not clear if the insurance companies will treat them the same…so this is an area to watch as things continue to unfold.

Bottom line:  The introduction of medical marijuana isn’t as bad a topic as we may have braced ourselves for.  Yes, there are some considerations to be made but, for the most part, provisions are in place to protect the employer and the employee.  Don’t rush out to change policies based on the hype or fear that has been spread around….but also don’t wait until one of your employees comes to you with their new Registry ID card.

Talk about it now – how you would handle it and how you want to handle it – and everything can still continue as “business as usual.”