Key Takeaways

• Recreational marijuana possession and use is legal under Illinois law for all adults

• The law is not settled, but at least one Commission case denied the compensability of medical marijuana expenses under the legal doctrine of federal preemption

• Illinois employers may still enforce drug free workplace policies and require post-accident drug screens

• Section 11 of the Illinois Workers’ Compensation Act establishes the availability of an “Intoxication Defense” in appropriate cases

The first legal sales of medical marijuana in Illinois were allowed as of January 1, 2014 under the Compassionate Use of Medical Cannabis Program Act. The four-year pilot program allowed patients with any one of 42 specific and debilitating medical conditions to use medicinal marijuana after properly registering with the Illinois Department of Public Health.

In 2018 and 2019, Illinois passed several laws greatly expanding the availability of medical marijuana and, as of January 1, 2020, permitting adult recreational use for all persons at least 21 years old. See Alternative to Opioids Act of 2018 and its Illinois Medical Cannabis Pilot Program (MCPP) that were followed by the Cannabis Regulation and Tax Act (the Cannabis Act).

The expanded medical marijuana pilot program is now permanent. Adult use (i.e., recreational use) taxes result in higher consumer prices, so there is a personal financial incentive to register for medical marijuana use if one qualifies. The Illinois Department of Public Health maintains a list of debilitating conditions that may qualify patients for medical marijuana registry identification cards. Notably, these conditions include many diagnoses often encountered in medically complex workers’ compensation claims such as chronic pain, complex regional pain syndrome type II/reflex sympathetic dystrophy, lupus, migraines, neuropathy, osteoarthritis, rheumatoid arthritis, severe fibromyalgia, and PTSD.

The Cannabis Act allows employers to maintain drug-free work places, continue drug testing programs, and restrict cannabis use at work or while employees are on call. Likewise, the Workers’ Compensation Act still provides for an intoxication defense. However, both statutes are silent on the issue of whether worker’s compensation benefits cover medical marijuana use.

The Commission recently had an opportunity to consider this question in Jerry Valadez v. City of Harvey. In that case, the Commission upheld an arbitrator’s finding that, as a matter of law, medicinal marijuana expenses could not be deemed reasonable and necessary medical treatment. The arbitrator reasoned he could not authorize any medical care for workers’ compensation reimbursement if such medical care violates federal law based on the principle of federal preemption. The Commission did not comment on the arbitrator’s legal reasoning. It should be noted that Commission decisions are merely persuasive precedent and this issue has not been addressed by the Illinois Appellate Court or Illinois Supreme Court. A different arbitrator or Commission panel may reach a different conclusion.

We recommend that where possible respondents also obtain utilization review or independent medical examination expert (IME) opinions to comment on the medical necessity and causal relation of any medicinal marijuana prescriptions. When attempting to establish an Intoxication Defense under Section 11 of the Act, respondents may need to consider obtaining a toxicologist IME opinion. However, tests for the presence of marijuana metabolites generally cannot discern the time period of last use with the necessary specificity. Thus, securing witness statements should be a priority after any workplace accident where intoxication is suspected.

For more information or immediate guidance, contact:

• Kyle P. Carlson
• Emily E. Borg
• Jennifer B. Santoro
• Natasa Timotijevic
• Or another member of our Illinois Workers’ Compensation team