In 2014, Illinois passed the Compassionate Use of Medical Cannabis Pilot Program Act (the “Act”), which permits individuals who are suffering from certain debilitating medical conditions to use prescribed marijuana to alleviate their symptoms. The Act does not require employers to permit employee use of marijuana in the workplace, even when the employee has been lawfully prescribed medical marijuana. A qualifying patient is not permitted to be impaired at work, and an employer who has a good faith belief that a qualifying patient is impaired while working, or has used or possessed cannabis at work, may take disciplinary action, consistent with company policy. Employers are still permitted to enforce zero-tolerance drug policies, even though an employee may be legally prescribed medical marijuana. In other words, an employer is free to fire anyone who tests positive for marijuana, even without the slightest suggestion that the person came to work in an impaired condition. A positive test without signs of impairment is possible because marijuana remains in a person’s system for days, or for regular, long-term users, even weeks after the individual has smoked marijuana.

On the other hand, the Act prohibits employers from penalizing an employee solely for his or her status as a registered, qualifying patient. Around the country, employers have recently faced legal challenges from employees who argued that similar state laws for medical marijuana permit them to use the drug away from work. In those cases, courts have generally found in favor of the employer.

However, because Illinois courts have yet to issue an opinion on this matter, Illinois employers with a zero tolerance policy for medical marijuana, if challenged, may have to break new legal ground.

An employer should carefully consider its approach to drug testing of employees and develop a consistent and transparent plan for responding to drug test results.