In a recent Colorado Supreme Court decision, Coats v. Dish Network, 2015 CO 44 (June 15, 2015), an employee who used medical marijuana was terminated after failing his employer’s drug test.  He sued his employer claiming that Colorado’s Lawful Activities law prevented his employer from discriminating against him based on “lawful” conduct, such as being a registered medicinal marijuana user.  His employer argued that while medical use was permitted under state law, marijuana is still a Schedule I controlled substance (and hence” unlawful”) under federal law, there being no exception for medical use.  The Colorado Supreme Court agreed with the employer.

Illinois has its own medical marijuana law, the Compassionate Use of Medical Cannabis Pilot Program Act (“Act”), which contains a specific section dealing with the employer-employee relationship.

In Illinois, an employer cannot penalize an employee solely for that employee’s status as a registered qualifying patient or registered caregiver, unless certain exceptions apply.  410 ILCS 130/40(a). Section 130/50(g) of the Act specifically states that no cause of action shall be created in favor of an employee when the employer, in good faith, believes the registered user used, possessed, or was impaired by cannabis while on the employer’s premises or during the hours of employment.

Illinois also has a privacy protection statute similar to Colorado’s statute.  Illinois’ Right to Privacy in the Workplace Act states, in pertinent part:

(a) Except as otherwise specifically provided by law and except as provided in subsections (b) and (c) of this Section, it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours.  820 ILCS 55/5 (emphasis added)

The Coats’ court expressly declined to address whether the employee’s use of medicinal cannabis was lawful under Colorado’s Medical Marijuana Amendment.  Coats, 2015 44, ¶ 21.  Since Section 130/50 of the Act applies to the employer-employee relationship, any Illinois court would likely need to address the Act’s provisions if a registered user was terminated from employment for failing a drug test or because the employer learned of the employee’s marijuana use outside working hours.  It would seem anomalous for the Act to give certain protections to employees during working hours, but allow the employer to penalize the employee for off-duty conduct that implicates medical cannabis use.

In the age of social media, employees otherwise private lives can inevitably become public fodder, and savvy employers may learn about employee behavior during non-working hours.  While Illinois’ privacy act can certainly be used by employees to prevent employers from taking adverse action against them based on “lawful” product use, medicinal cannabis use may fall into a gray area.