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Illinois has joined a number of states and the District of Columbia in decriminalizing the use of marijuana for medical purposes.  This update provides useful information to employers in Illinois about the current status of rule making pursuant to the Act, as well as compliance with the Act and federal law.

Current State of Rule Making

Illinois enacted the Compassionate Use of Medical Cannabis Pilot Program Act (410 ILCS 1301/1), and although the Act officially became effective on January 1, 2014, the state departments charged with creating the rules to regulate the use of medical cannabis have four months from the effective date to submit rules to the Joint  Commission on Administrative Rules.

The Illinois Department of Agriculture will regulate the “Registered Cultivation Centers.”  These centers will be the only licensed producers of medical cannabis in Illinois.  The Illinois Department of Financial and Professional Regulation is charged with regulating the “Licensed Dispensaries” which will provide medical marijuana to registered medical users.  As of this time neither department has published proposed rules.

The Illinois Department of Public Health will create a registry of approved users based upon applications supported by certificates from licensed physicians and will issue registry identification cards.  IDPH will also issue cards to approved designated caregivers.  IDPH has issued proposed rules which may be found on the department’s website at: http://www.idphstate.il.us/HealthWellness/MedicalCannabis/index.htm.  Before discussing the features of the proposed rules of particular interest to Illinois employers, a brief overview of the basic features of the Act is appropriate.

Illinois Medical Marijuana - Who Qualifies?

Under the Act only persons aged 18 or over with specific medical conditions may apply for inclusion in the registry and for an ID card.  The applicant may not have a felony drug conviction in his or her background.

Also the Act creates a “pilot program” that will be automatically repealed on January 1, 2018, unless renewed by the legislature and signed by the governor.

The adoption of the Act rests upon the medical evidence that the use of cannabis may have a salutary effect on certain medical conditions or on the symptoms associated with those conditions.  The Act specifically lists at least 40 chronic conditions and diseases that can be the basis for applying to be included in the registry.  The diseases and conditions certainly include many that may be found among a typical pool of employees, such as: 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.  Also, the Act provides for the future inclusion of additional diseases and conditions.

There is a rebuttable presumption that a person issued a card under the Act is using cannabis in accordance with the Act.  Most users will be limited to possession of up to 2.5 ounces of cannabis in a two-week period.

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For more information about the Illinois Medical Marijuana Act, please contact Joseph F. Spitzzeri or Nicholas R. Lykins.

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Limitations On Who May be Registered and On Use

The Act does not permit any person to undertake any task while under the influence of marijuana when doing so would constitute negligence, professional malpractice or professional misconduct.

The Act does not permit the use or possession of medical marijuana by commercial drivers, police officers, correctional and probation officers, or fire fighters.

Additionally, the Act does not permit the use or possession of cannabis on a school bus, on school grounds, in a vehicle- if open and accessible, or in a correctional facility.

Location of Use Restricted

For the most part, use of medical marijuana is limited to the employee’s residence.  It may not be used in public or in any location where smoking tobacco is forbidden by the Smoke Free Illinois Act.  The Smoke Free Illinois Act prohibits smoking in virtually all workplaces in Illinois.

The Act also specifically states that private businesses may restrict or prohibit the use of medical marijuana on their property.

Compliance with the Act and Federal Law

The Act does not require any Illinois employer to violate federal laws that apply to its business or to jeopardize any federal contract or benefit.  While the Act is clear 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 may take action as to such an employee if to do otherwise would, as an example, cause the employer to violate USDOT regulations or the provisions of the Drug-Free Workplace Act.  If the employer’s business requires compliance with federal laws or regulations concerning employee drug testing, the Act is not intended to restrict or interfere with its compliance.

Status of Department of Public Health Rules

Although no date has been set for when the first registry cards will be issued, Illinois employers need to know that rule making is moving forward and that under the proposed rules, the first cards may be issued by the end of 2014.

The proposed IDPH rules have been published and public comments were to be submitted by February 7, 2014.

Under the proposed rules, applications for the registry for persons with last names beginning with A to L may be submitted between September 1, 2014 and October 31, 2014.  Those with last names beginning with M to Z are to submit applications between November 1, 2014 and December 31, 2014.  Beginning on January 1, 2015 applications will be accepted year-round.

The rules also provide for the formation of a Medical Advisory Board whose nine members will be appointed by the governor and who will meet twice per year to consider petitions to add new medical conditions to the list of approved conditions/diseases that are approved under the Act to be treated by medical marijuana.

The rules also provide for periodic renewal of the user’s status as a member of the registry.

Conclusions

Although rule-making efforts under the Act are still in process, some basic conclusions may be drawn concerning the use of medical marijuana by employees.

Under the Act, the issuance of the ID card is prima facie proof that the card-holder is entitled to use cannabis as medicine.

Employers may not penalize a cardholder solely because he is entitled to use medical marijuana, but the employer may restrict or prohibit its use in the workplace.

The employee may not be under the influence when he’s doing his job if to be in such a condition would constitute negligence.  An employer does not violate the Act where it is required to follow the rules of USDOT, the provisions of the Drug Free Workplace Act, or other federal law concerning drug use by employees or drug testing of employees.