The Chicago Employment Law Blog

Medical Marijuana Users Can Be Fired Over Pot, Proposed Law Says

Illinois' medical marijuana bill promises some protections for registered users, but if it's signed into law, employees can still be legally fired for using medical marijuana.

Illinois could be the 19th state to have passed medical marijuana legislation, but the proposed law -- which is currently awaiting Gov. Pat Quinn's signature -- does little to protect medical pot users who will be subject to firings and discipline for their legal use of the drug.

Protection From Employer Discrimination

The Compassionate Use of Medical Cannabis Pilot Program Act does provide that employers (as well as schools and landlords) may not discriminate based on a person's registered medical marijuana status.

Likewise, businesses cannot be denied state benefits for employing someone who has a medical marijuana license.

However, the law makes an exception for businesses to bar the smoking of marijuana on company grounds.

Company Policy Protected

Even though the Act prohibits medical pot discrimination, it may be a bit paltry in light of two exceptions.

A company may discriminate against medical pot users if:

  1. The company believes it would put them in violation of federal law, or
  2. Hiring or employing a medical marijuana user would deny the company federal funds.

Despite any state law to the contrary, use and possession of medical marijuana is still illegal under federal law, and companies cannot be forced to break federal law to comply with Illinois law.

Drug Test Failed, Then Fired

The issue of medical marijuana-related firings has come up in other states that allow for medical pot. In Michicagn, Walmart fired a medical marijuana cancer patient in 2009 after he tested positive for marijuana on a company drug test. Federal courts ruled that Michigan's medical marijuana law did not protect him from being fired.

This is not just a Midwestern phenomenon; Washington's courts similarly decided that the state's Medical Use of Marijuana Act does not protect employees from being fired, even if they use their medicinal marijuana outside of work.

Illinois employees won't have to wait for an Illinois court decision to know that they can be fired. That's because the Act explicitly allows companies to "discipline" employees for failing a drug test.

Although this Act won't prevent future medical marijuana cases for wrongful termination, Illinois lawmakers haven't given employment lawyers much room to wiggle.

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