CBA Record

tion. Lastly, the Appellate Court rejected the employer’s argument that the policy is reasonable because the employer is required to maintain a drug free workplace policy in order to remain eligible for federal funding, because the federal statute does not require grant recipients to discharge an employee for off-duty marijuana use. The Appellate Court emphasized that it was not ruling on whether the employer was justified in discharging the employee for his admitted marijuana use absent a positive result on a drug test. “The question is only whether his conduct amounts to ‘miscon- duct’ that will disqualify him from receiving unemployment insurance benefits.” Accord- ing to the Appellate Court, an “employee’s conduct may be sufficient to justify his discharge without constituting misconduct sufficient to disqualify him from benefits under the Unemployment Insurance Act.” Clarity Needed The law of medical marijuana is quickly evolving, and the intersection of medical marijuana law and employment law is com- plex. In Illinois, it remains unclear whether an employee who is a registered MCPP patient can be discharged from employ- ment for violating an employer’s drug free or zero-tolerance policy (or for failing a drug test), when the employee never ingested and was not under the influence of medical marijuana at work. The Eastham decision seems to suggest that that Illinois courts may be willing to protect employees’ off-duty use of medical marijuana. All employers in Illinois should update their employee handbooks and policies to take into account medical marijuana. In addition, they should inform and train their human resource personnel accordingly. William Bogot represents clients before government agencies in highly regulated industries, including medical marijuana and gaming, at Fox Rothschild LLP. Maura Neville represents clients in all aspects of com- mercial and employment litigation, including mediation and arbitration at Nixon and Peabody LLP

be under the influence of alcohol or any controlled substance “while in the court of employment.” The employee was required to submit to a random drug test pursuant to the policy. After taking the test, the employee informed his supervisor that he had smoked marijuana while on vacation a few weeks earlier and that he did not believe he would pass the test. It turned out that the employee did pass the test, but the employer still terminated the employee for violating the policy. The employee was thereafter denied unemployment benefits by the Board of Review of the Depart- ment of Employment Security because his ingestion of marijuana while on vacation constituted “misconduct…while in the course of employment.” On appeal of the Board of Review’s denial of unemployment benefits, the Circuit Court reversed the agency’s denial of benefits. In affirming the decision of the Circuit Court, the Appellate Court held that the employee did not violate the employer’s policy because he was not under the influ- ence “while in the course of ” his employ- ment. The Appellate Court rejected the employer’s interpretation of this phrase to mean “any time the plaintiff was an employee of the Housing Authority.” Moreover, the Appellate Court held that the policy was not reasonable because the employee was not in a safety-sensitive posi-

no evidence that the employee had ingested or was under the influence of marijuana at the workplace. Nonetheless, the employer then challenged the employee’s applica- tion for unemployment benefits. The sole issue for the Appellate Court was whether unemployment benefits may be denied to an individual who used medical marijuana outside of work in accordance with state law. The Appellate Court ruled in favor of the employee, holding that the employee was not disqualified from receiving unem- ployment benefits. No Illinois court has yet to rule on whether an employee who is a registered medical marijuana patient in Illinois can be discharged from employment or receive unemployment benefits for violating an employer’s drug free, zero-tolerance policy or for failing a drug test, when the employee never possessed and was never under the influence of medical marijuana at work. However, just last December, the Illinois Appellate Court ruled that an employee is entitled to unemployment insurance benefits after he was terminated for using illegal, non-medical marijuana, outside of the work place. Eastham III v. The Housing Authority of Jefferson County, et al., 2014 IL App (5th) 130209 In Eastham, the employer had a drug and alcohol free workplace policy which provided that employees may not use or

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