Illinois Enacts Medicinal Cannabis Pilot Program Law

Governor Patrick Quinn recently signed into effect Illinois’ pilot program legislation allowing the use of marijuana for medicinal purposes.  Enacted on August 1, 2013, the law takes effect on January 1, 2014.  Entitled the “Compassionate Use of Medical Cannabis Pilot Program Act”, Illinois has joined the ranks of approximately two dozen other states who allow marijuana use for medicinal purposes to treat debilitating medical conditions.  At 70 pages, the law provides for a restrictive administrative and enforcement scheme, including revenue and taxing provisions, and the creation of a special fund in the State Treasury devoted implementation, administration, and enforcement of the law.   The pilot program and will be automatically repealed after four (4) years.

The law contains legislative findings concerning the medical value of marijuana use.   To obtain medical marijuana, a person must become a registered user suffering from a debilitating condition with an established and ongoing relationship with a doctor.  The law defines over three dozen medical conditions as debilitating, and allows more conditions to be added by administrative rule-making.  Lawful registered users may purchase up to 2.5 ounces of marijuana every 14 days from a registered, licensed dispensary which obtains the drug from a registered, licensed intrastate cultivation center.

Various provisions of the law will be respectively enforced by the Departments of Public Health, Agriculture, and Financial and Professional Regulation.  The law provides registered patients and caregivers, physicians, and registered dispensing organizations and cultivation centers with immunity from arrest and prosecution or penalty, and protects property from forfeiture.  The law prohibits, inter alia, the possession or use of cannabis in vehicles, on school grounds, correctional centers, child care centers, or in public places.

For a physician to certify a debilitating medical condition qualifying for cannabis treatment, the physician must be in good standing, hold a controlled substances license, must follow generally accepted medical standards of practice, not practice telemedicine, and maintain records available to the Departments in charge of enforcing the statute.  A physician may not hold a direct or indirect economic interest in a dispensing center or cultivation center if he or she recommends the use of medical cannabis to qualified patients.

The law expressly provides that it does not prevent a private business or landlord from restricting or prohibiting the medical use of marijuana on its property.  The law prohibits an employer from discriminating against an individual who is a registered user or caregiver, unless the failure to do so would cause the employer to violate federal law or lose a benefit under federal law.  It also provides that no employer shall be denied any state benefits for employing a cardholder.  The Act expressly provides that health insurers are not required to reimburse a person for the costs of medicinal marijuana use.

The law specifically provides that an employer may adopt reasonable rules relating to the use of medical marijuana.  An employer is not prohibited from enforcing a policy concerning drug testing, zero-tolerance, or a drug-free work place, provided the policy is applied in a nondiscriminatory manner.  The law also provides that an employer may discipline a registered user for violating a workplace drug policy, or for failing a drug test, if the failure to impose discipline would put the employer in violation of federal law or cause it to lose a federal contract or funding.

The law expressly provides that an employer may consider an employee impaired when the employee manifests specific, articulable symptoms, defined by statute, such as speech, dexterity, agility, demeanor, etc.  If an employer disciplines a registered user, it must provide the employee with a reasonable opportunity to contest the basis of the determination.  The Act also provides that no cause of action is created against an employer for 1) adverse actions taken in the good faith belief that the employee used or possessed cannabis while on the employer’s premises, 2) adverse actions taken in the good faith belief that the employee was impaired while working, or 3) loss or injury to a third party if the employer neither knew or had reason to know that the employee was impaired.  Finally, the Act provides that it shall not be construed to interfere with any federal restriction on employment, including Department of Transportation regulations.

An employer is permitted to discipline the registered user employee to the same extent that it would discipline other employees who use controlled substances or alcohol while at work, or who are impaired at work.  Unlike the medical use laws of other states, such as Maine and Arizona, the law attempts to define impairment.  A registered user is not a person with a disability under the meaning of the American with Disabilities Act, because a protected, disabled individual under the ADA is not one who uses drugs unlawful under federal law.  However, the underlying medical condition requiring the medical use of marijuana would probably be a disabling condition under federal law in its own right.  Moreover, a claim of unlawful discrimination could be posited upon the employer’s perception that the employee has a disability.

Because of the antidiscrimination provisions of the statute, an employer may not necessarily discipline a registered user to the same extent that it would a non-registered user for testing positive for marijuana.  The law does provide the employer with the right to discipline or discriminate against a registered user if it would cause an employer to lose a federal contract.  The law clearly provides that federal regulations, such as the Department of Transportation’s regulations, which would require the removal from duty of a driver who tests positive, shall remain in effect.  Otherwise, however, it would seem to be unlawful to discipline a registered user for testing positive alone, where the employee was not possessing or using, or impaired, on the job.  Moreover, an employer cannot discriminate against a registered user who is an applicant who tests positive on a pre-employment drug screen.

The law contains detailed provisions and requirements for becoming a registered user.   The law also contains detailed provisions for denial of a card, including a previous conviction of the Illinois Controlled Substances Act, Cannabis Control Act, or Methamphetamine Control and Community Protection Act, or similar law.  The Department of Public Health, through the Illinois State Police, shall be responsible for background checks of applicants for registration cards.  A registered user must inform the Department of Public Health of any change in his or her name, address, or debilitating condition, within 10 days of the change, or within 10 days if a card is lost.  The regulation of medical cannabis as food products (e.g., brownies, cookies) is prohibited so long as, inter alia, the requirements of the Federal and Illinois Food, Drug, and Cosmetic Act are observed, and certain warnings and disclaimers are observed.  The law also spells out the requirements for becoming a licensed dispensing organization and cultivation center, and prohibits licensure to those entities whose principals, employees, or agents have, inter alia, been convicted of drug offenses, felonies, or have given false information.  The law provides for detailed regulation of dispensing organizations and cultivation centers by statute and future rule-making.  The law provides that no later than 120 days after August 1, 2013, the Departments in charge of enforcing the statute shall issue rules regulating enforcement of the Act.