SECOND QUARTER 2019

ILLINOIS

By: John Murphy and Austin Moore

Questions:

In Illinois, how should employers handle employees with pre-existing medical conditions who are using legally prescribed medical marijuana? Second, how should an insurer handle an injured employee who has been legally prescribed medical marijuana for treatment within a workers’ compensation claim?

Discussion:

Medical Marijuana and Pre-Existing Medical Conditions

Several years ago, Illinois enacted the Compassionate Use of Medical Cannabis Pilot Program Act. Under this law, people are permitted to use medical marijuana to treat debilitating medical conditions, as defined under the Act. 410 ILCS 130/10(h). This law was established to protect patients, physicians, and medical providers from prosecution and civil liability. Id. With respect to the workplace, however, an employer is not prohibited from adopting reasonable regulations concerning the consumption, storage, or timekeeping requirements for qualifying patients related to the use of medical cannabis. 410 ILCS 130/50(a). In fact, the law specifically recognizes the right of an employer to enforce a drug-testing, zero tolerance, or drug-free policy, and it does not prohibit an employer from disciplining a registered qualifying patient for violating a workplace drug policy. 410 ILCS 130/50(b)-(c).  A qualified patient is defined as a patient that has been diagnosed by a physician as having a debilitating medical condition, permitting them to use medical marijuana.  410 ILCS 130/10(t).

The law is clear that the Act does not create a cause of action for any person against an employer for the following: (1) actions based on the employer’s good faith belief that a registered qualifying patient used or possessed marijuana while on the employer’s premises or during the hours of employment; (2) actions based on the employer’s good faith belief that a registered qualifying patient was impaired while working on the employer’s premises during the hours of employment; (3) injury or loss to a third party if the employer neither knew nor had reason to know that the employee was impaired. 410 ILCS 130/50(g).

Regardless of the employer’s right to enforce its own rules in the workplace, it may not refuse to enroll or otherwise penalize a person solely for his or her status as a registered qualifying patient unless failing to do so would put the employer in violation of federal law or unless failing to do so would cause it to lose a monetary or licensing-related benefit under federal law or rules. 410 ILCS 130/40. Furthermore, Illinois has privacy laws to which the employer must adhere. For example, the Right to Privacy in the Workplace Act protects employees from discrimination based upon their off-work use of lawful products. 820 ILCS 55/5. In other words, an employer may not refuse to hire or decide to fire an employee after learning that they engaged in the use of lawful products during nonworking hours. Id. The Illinois Department of Labor’s regulations Section 360.110(g) defines lawful products to include, “any drugs lawfully prescribed by the employee’s own physician. Provided, however, that any use or overconsumption of these lawful products that directly impairs the performance of the employee at the workplace shall not be protected under this Act.” At this time, employees who are registered qualifying patients and use marijuana would be protected under the Act.

In summary, Illinois law permits employers to enact reasonable regulations within their workplace. Although employees that are permitted to use medical marijuana are protected from prosecution and civil liability, they must still adhere to their employer’s workplace rules and guidelines when consuming. However, once an employee is away from the workplace and the workday is done, an employer may not punish or discriminate against the employee for lawful use of medical marijuana. It is important to remember that the Act does not create a prescription for the use of medical marijuana, but simply creates a certification that the employee could benefit from using medical marijuana.

Medical Marijuana and Illinois Workers’ Compensation

Under the Illinois Workers’ Compensation Act, the employer is required to pay reasonable and necessary medical expenses. 820 ILCS 305/8(a). However, the Illinois Compassionate Use of Medical Pilot Program Act appears to provide employers an express defense to a claim for payment of the costs associated with medical marijuana prescribed by a treating doctor to cure or relieve the ill effects of a work place injury:

“Nothing in this Act may be construed to require a government medical      assistance program, employer, property and casualty insurer, or private health     insurer to reimburse a person for costs associated with the medical use of          cannabis.” 410 ILCS 130/40(d).

Employers can certainly cite to the foregoing provision to deny in good faith reimbursement for medical marijuana.

Apart from the express statutory defense provided above, there are two primary more traditional ways an employer can challenge the reasonableness and necessity of an employee’s use of medical marijuana. First, the employer may attempt a utilization review for the prescription of medical marijuana, likely prescribed for pain management. A non-certification would permit denial of the reasonableness or necessity of medical marijuana as a treatment of the employee’s workplace injuries and give the employer a good faith basis to deny benefits.

Second, an employer could obtain an independent medical examination (IME). If the doctor determines that the prescribed marijuana is not medically necessary, the IME report could also form a good faith basis to deny the reasonableness and necessity of the employee using medical marijuana to treat a workplace injury.

Lastly, if an employee tests positive for marijuana while in the workplace, the employer may deny all medical, temporary total disability, and permanent partial disability benefits consistent with the intoxication defense provisions of the Illinois Workers Compensation Act.  820 ILCS 305/11.  A positive drug test, or an employee’s refusal to submit to the drug test, creates a rebuttal presumption that the employee was intoxicated and such intoxication was the proximate cause of the employee’s injury. For further information, please refer to Hennessy & Roach’s First Quarter 2017 newsletter (available upon request).

In summary, an employer faced with an employee who uses medical marijuana pursuant to lawful prescription nevertheless retains its rights under the Illinois Workers Compensation Act, including the right to raise the intoxication defense to the entire claim; the right to utilization review or an IME in the event medical marijuana is prescribed during the course of treatment.

Practice Tip:

In Illinois, the state of law regarding medical marijuana, both within and outside the context of a workers’ compensation case, remains in great flux.  To best prepare for this evolving context, employers should review their human resource and drug use policies to ensure that there is a policy in place to address how to handle a registered qualified patient.  Once implemented, employers should circulate the provisions of the handbook and provide training to both supervisors and its employees.  In the workers’ compensation context, medical marijuana should not be treated any differently than any other intoxicating substance that might impair an employee in performance of his or her work duties.  Intoxication remains a valid defense in the proper case.  Lastly, the tools provided in the Act – utilization review and IME, remain available to the employer as a defense to non-payment.  Further, the express terms of the Compassionate Use Act appear to squarely negate the obligation of an employer to pay for medical marijuana prescribed to treat a workplace injury.