The Compassionate Use of Medical Cannabis Pilot Program Act legalizing medical marijuana was signed by Governor Quinn on August 1, 2013, and went into effect on January 1, 2014. The passage of the Act legalizes the prescription, sale and use of medical marijuana for at least the next four years, starting in 2015. Given the profile and potential liabilities, business owners need to be aware of potential risks.

According to the Act, any patient who has a legitimate prescription for medical marijuana is not “subject to arrest, prosecution, or denial of right or privilege” for his (or her) use of medical marijuana. In addition, the Act provides that the “professional license” of any patient is similarly not at risk due to that patient’s use of marijuana for medical purposes. And, the Act states that no “employer . . . may . . . otherwise penalize a person solely for his or her status as a registered qualifying patient.” In addition, no “employer may be penalized or denied any benefit under State law for . . . employing” a patient.

There are, however, some complexities that can lead to complications. The Act states that although employers shall not penalize a person due to their authorized use of medical marijuana, an employer may penalize such a patient if “failing to [penalize the Patient] would put the . . . employer . . . in violation of federal law.” This provision introduces a major hurdle to any business attempting to comply with the Act. While the business is banned from denying any patient their rights, including the right to employment or punishing a patient solely due to the use of medical marijuana, the business is obligated to penalize the patient for use if failing to do so runs afoul of Federal law. In other words, since possession and/or use of marijuana is prohibited in all circumstances under Federal law, it would seem that the failure by a business to penalize a patient would violate Federal law.

To further confuse the issue, the Act details the ways employers of patients should discipline or otherwise regulate the patient’s use of medical marijuana. These regulations include the enforcement of “a policy concerning drug testing, zero-tolerance or a drug free workplace.” So, according to the Act, patients cannot be denied rights or discriminated against due to their use of medical marijuana. Yet, businesses can still enforce zero-tolerance policies and cannot violate Federal law. This essentially creates a blanket prohibition on the use/possession of marijuana.

As the Act is activated throughout 2014 and slowly implemented throughout 2015, businesses will have to remain aware of the conflicting requirements of the Act and Federal law. In almost every case, this will require the smart business to review and rethink its Employee Policies and Handbooks.

Businesses will need to balance the Act, Federal law and business goals and beliefs in order to craft a workable drug policy that obeys the Act and Federal Law, while respecting the employees, to avoid potential lawsuits based on discrimination according to the Act.

While other States are ahead of Illinois, they are walking in uncharted waters. We are at the forefront of Act compliance in Illinois and would counsel businesses to contact our Business Team at Anthony J. Madonia & Associates, Ltd. to perform a complete audit of the business’s Employee Handbook and Policies. We can then advise them on how to comply with the Act while still retaining policies important to the business.

Although the passage and implementation of the Act has greatly confused a once clear-cut area of the law, violation of the Act is avoidable with advance planning.

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