We are always saying that the United States is a patchwork of law, policy, and public opinion about marijuana, though things are trending towards relaxation and legalization. Evidence of this varied landscape is abundant. Last week we wrote about a lawsuit pending in Rhode Island, where the plaintiff (a lawful card-carrying MMJ patient) alleges she was turned down for an externship because of that status, in violation of state anti-discrimination laws. Today we discuss a different kind of employment law issue, demonstrating a significantly more permissive attitude about marijuana use.

In Eastham v. The Housing Authority of Jefferson County and IDES, 2014 IL App. (5th) 130209 (5th Dist. Dec. 2, 2014), Eastham, a maintenance worker for the Jefferson County Housing Authority, was subject to random mandatory drug screening. After submitting to a test, Eastham then told a supervisor he did not believe he would pass the test, as he had smoked marijuana several weeks earlier while on vacation. Eastham was fired for violating the Housing Authority’s drug and alcohol free workplace policy, and was not reinstated after the test results were negative. Eastham then sought unemployment benefits from the Illinois Department of Employment Security (IDES), but was denied payments due to the nature of his termination. IDES examined the Housing Authority’s policy which stated that employees were prohibited from using or being under the influence of any controlled substance “while in the course of employment” and, interpreting “course of employment” broadly to even include off-duty hours, affirmed the denial of benefits.

Eastham appealed the agency’s denial, which was upheld through administrative appeals, but ultimately overturned by the Circuit Court, which disagreed with the broad reading of the “in the course of employment” provision, stating that, under “well-settled” Illinois law, the phrase only encompasses activity occurring “at a place where the worker may reasonably be in the performance of his duties and while he is fulfilling those duties or engaged in something incidental thereto.” In other words, “in the course of employment” does not include your every breathing moment while employed. Among the reasons the Circuit Court found the agency’s interpretation unreasonable was the fact that marijuana is now legal in some states and the fact that it unreasonably restricted off-duty time while serving no legitimate public purpose. Therefore, the Circuit Court concluded, Eastham had not transgressed the Unemployment Insurance Act and he was entitled to unemployment benefits. Two weeks ago a panel of the Illinois Appellate Court agreed.

It is important to note that Eastham made no claim that his marijuana use was somehow legal, because it was for medical purposes, or occurred in Colorado or Washington or for any other reason. If an employee’s illicit off-duty use of marijuana does not provide grounds for firing and disqualify him from unemployment benefits, surely an authorized MMJ patient or responsible recreational user should be treated the same, even where the employer’s drug-free workplace policy attempts to regulate that behavior. The reasoning behind the Eastham decision may not apply, however, to those with jobs affecting public safety, or in situations where the employer’s policy is more closely tied to the employee’s position and serves a legitimate employer concern.

Look for this ruling to be tested in the next couple of years as Illinois continues rolling out its medical cannabis pilot program, and even cited by courts in other state-legal marijuana jurisdictions, trying to iron out the wrinkles in this patchwork.