Look how the story develops. On the first place, it has been a year since an epilepsy patient, Jane Henry, has been serving at your company. As prescribed by the doctor, she uses cannabis for relieving the symptoms of her disease. In a routine drug test, Jane was found to be taking the drug. Despite the fact that the federal law renders medical marijuana illegal, the use of the drug has been given legal protection in Illinois if it is prescribed by a registered medical practitioner. It is for your information that Jane neither showed the signs of weakness nor was she ever found smoking while on work. Meanwhile, John Smith, another worker at your firm, was found to be using marijuana. However, he was not suffering from such a medical condition on the basis of which he could be legally allowed to use cannabis. So, how do you tackle such conditions when your firm aims at enforcing a drug-free workplace policy with zero tolerance?
Suppose, John and Jane are both dismissed from their job for going against your policy of drug-free workplace. On this, Jane resolves to challenge the dismissal in the court by claiming protection under the IHRA, 775 ILCS 5/1 (Illinois Human Rights Act) and the ADA, 24 USC section 12101 (Americans with Disability Act). At the same time, she goes for securing the unemployment benefits. John, on the other hand, has no intention to challenge the dismissal and also he does not go for securing the unemployment benefits.
The above situation is just a glimpse of the complicated legal problems that, in the coming some years, all the companies in Illinois will have to face.
Illinois Marijuana Law
Illinois’ Medical Cannabis Pilot Program Act, passed in January 2014, legalized the use of medical marijuana in the state. In this way, Illinois was included in the list of 23 other states and the District of Columbia that have already legalized the medicinal use of cannabis. Under this act, the individuals suffering from serious medical conditions are allowed to use the drug for treatment purposes. Similarly, the Act also authorizes the companies to prevent the possession or even the medical use of the compound on their estate. The employer will also be in a position to force the worker to comply with the written policy of drug use prohibition even if the latter has been permitted to use medical marijuana owing to the severity of their medical condition. The law clearly mentioned that the private businesses will face no legal issue while enforcing the drug-free policy on their estate. Moreover, connected with the cannabis use, a business is allowed to implement the regulatory policy in a reasonable way, including carrying out drug testing and taking disciplinary action against the violators of the rule. If the employers fail to implement such drug prohibition policies, they will be considered as going against the federal law.
As per the Controlled Substance Act, the federal law still enlists cannabis as Schedule 1 substance, thus making its use illegal. The employers and employees in Illinois are bearing the brunt of the ongoing rivalry between the state and federal law as their rights to use the drug for medical purposes still remain unclear. Though the federal law is effective, the registered cannabis patients have not been pursued by the DOJ (Department of Justice).
It is not just the conflict of the state law with federal law—the Illinois cannabis program is facing challenges on other fronts as well. There are certain points in the Illinois law itself which do not allow the complete legalization of the program. To take an example, the Illinois Human Rights Act protects the private businesses from adopting a discriminatory behavior on the grounds of impairment. The Act is likely to make it mandatory for the business owners to give a favor to the patients who are registered with the program and allowed to use the drug. On the other hand, federal law does not allow them to accommodate such patients as it still considers the use of cannabis as an illegal act.
If this be the case, what will be the fate of Jane in a situation discussed above? To get a solution for such an issue, we need to find out the acts given protection as well as those which are not protected by the Americans with Disability Act (ADA).
ADA—A Federal Law
As given in the Americans with Disability Act (ADA), cannabis may be recommended to those individuals who are suffering from a serious medical condition that may hinder a major life activity. Under the ADA, the employers are not allowed to show discriminating behavior against the employees, qualified for cannabis treatment, on the grounds that they suffer from some impairment. According to the definition of ‘disability’ offered by this Act, it is a condition in which an individual suffers from some mental or physical impairment and is unable to perform one or more of the vital activities. Concerning what is actually a major life activity, it can be speaking, learning, breathing, working, concentrating or other important functions of the body. However, the users of drug with no legal permission will not be given protection under this Act and the employer will have authority to take action against such workers. Still there remains an ambiguity regarding the ADA protection for drug use. It is, “Will the ADA give same protection to those patients who qualify for the use of a particular drug that is considered legal in some states while illegal in others?”
Under the Act, it has been explained that the legal protection for drug use will not be extended to those applicants or employees who are using the drug illegally even if they qualify for it on the basis of some disability.
Moreover, the ADA makes it permissible for the employers to implement the drug prohibition policies at their property. The act says that any use of drug will be considered illegal if the individuals do not abide by the Controlled Substances Act (CSA) regarding the use, possession or distribution of that particular drug. However, if a registered medical practitioner supervises the use of a particular drug, it will not be considered an illegal use. It also includes the other uses of drug that do not violate federal law and the CSA.
Now there may come two different arguments from a worker like Jane regarding the use of cannabis. In the first case, she may take the Controlled Substance Act as rendering the use of medical marijuana illegal for her. In the second case, Jane would probably be arguing that she is not violating the Act because the drug has been prescribed by a licensed health care professional and such a use is given legal protection. On the other hand, while carrying out the proceedings of a case, titled “James versus City of Costa Mesa”, the Ninth Circuit Court of Appeals gave another explanation for the legal use of drug. It said that for the drug use to be considered legal, it is necessary that the drug is being used under the prescription of a registered medical practitioner as well as such a use has been authorized by the federal law. When the plaintiff argued that the use of drug was legal for him as it was authorized by a licensed physician, the court responded that if doctors were given full authority, they could even recommend the use of any controlled substance even heroin and methamphetamine. Moreover, in another similar case, titled “Barber versus Gonzales”, the court did not accept the rationale that the drug use could be considered exceptional as it was being taken under the supervision of a licensed practitioner. So it appears that, under the IHRA and ADA, the claims of Jane would not have legal support and she will meet with failure. Will she be successful in her claim for unemployment benefits?
Unemployment Benefits Law
If someone is dismissed from the job on the basis of misconduct, they will not be entitled to avail the unemployment benefits offered under Illinois law. Concerning what accounts for misconduct, it is deliberately going against a code of conduct set by an employer, which results in problems either for the firm or other employees. Moreover, it will also be considered misbehavior on the part of the employees if they ignore the warning from the employing firm and go on repeating the same act. In Illinois, a court verdict in the case “Robinson versus Department of Employments Security” explained misconduct by saying that if someone is reported positive in drug tests twice, it will also be considered misconduct. Another situation constituting misconduct is the use of drugs at workplace that may or may not impair the efficiency of an employer. In another case, titled “Jackson versus Board of Review of the Department of Labor”, the court said if an individual neither uses drug at workplace nor their efficiency gets affected but they test positive for drugs at employer’s property, they will also be regarded as showing misconduct. Consequently, despite the fact that Jane was authorized to use medical marijuana, she won’t be able to succeed in her claims for unemployment benefits because she tested positive for the drug and violated the employing unit’s policy of zero tolerance for drugs. Likewise, the unemployment benefits cannot even be collected by John who tested positive in routine drug tests.
It is expected that, in the ensuing some years, required amendment will be made to the acts, such as the ADA and IHRA. Meanwhile, the companies are required to make necessary changes in their policies for drug testing in the period preceding the expected launch of marijuana industry. A large number of individuals and organizations, seeking permission to set up growth centers and dispensaries for marijuana, have submitted their applications for license at Springfield, Illinois. So, it is essential for the companies to bring their drug testing rules in accordance with the Medical Cannabis Pilot Program Act.