Recreational Marijuana Use in Illinois - How it Affects Employers
Illinois is now the 11th state to legalize recreational use of marijuana, effective January 1, 2020, under the Cannabis Regulation and Tax Act (the “Cannabis Act”).
What does this mean for Illinois employers?
For starters, employers generally can’t take adverse employment action against an employee who uses lawful products outside of working hours and off work premises, under the Illinois Right to Privacy in the Workplace Act. Come January 1, recreational marijuana used in compliance with the Cannabis Act will be deemed a “lawful product.” It appears that means Illinois employers generally can’t, for example, refuse to hire a candidate or terminate an employee simply because the person uses marijuana in compliance with the law, with some exceptions.
Does this mean employees can come to work high, or use marijuana on the job?
No. Employers have the right to adopt and enforce reasonable zero tolerance or drug-free workplace policies or employment policies concerning drug testing, smoking, consumption, storage, or use of marijuana while in the workplace, performing job duties off premises, or on-call, if the policy is applied in a non-discriminatory manner. If employees are impaired or under the influence while at work or on-call, they can be subjected to discipline, up to and including termination, in accordance with the employer’s workplace policies.
Keep in mind, marijuana is still illegal under federal law. The Cannabis Act does not interfere with an employer’s ability to comply with federal, state, or local law or cause it to lose a federal or state contract or funding. So, it appears employers who have to comply with federal laws and regulations, like the U.S. Department of Transportation regulations, can keep employment policies prohibiting all marijuana use where necessary to comply with applicable law. But unless an employer is required to comply with laws or regulations that prohibit all use of all controlled substances (including marijuana) by employees, the employer likely can’t take adverse action against employees solely because marijuana is illegal under federal law. Instead, the employer would need evidence that the employee was under the influence while at work or on-call.
What should employers start doing now?
The Cannabis Act takes effect in six months, but now is the time for employers to review their employment policies and practices, including workplace drug policy and drug testing, reasonable suspicion, reasonable accommodation, and discipline. The Cannabis Act defines when an employer can consider an employee to be impaired or under the influence, and when an employer can discipline an employee based on that belief. It also requires that employees be given a reasonable opportunity to contest the basis of a disciplinary decision for being impaired or under the influence on the job. In addition to updating policies and practices, employers should establish a written procedure for employees to contest marijuana-based discipline, and make sure their managers are trained on marijuana-related impairment signs and the procedures to follow. Laura Garofalo Law, LLC can help.