Employer Insights: Recreational Marijuana in Illinois

On June 4, 2019, the Illinois legislature passed the Cannabis Regulation and Tax Act (the “Cannabis Act”).  Under the Cannabis Act, Illinois residents over 21 years of age may legally possess 30 grams of marijuana flower and five grams of marijuana concentrate for their personal use, starting January 1, 2020.  The 610-page Cannabis Act also provides the most extensive workplace protections for employers of any marijuana legalization statute around the country. Indeed, the Illinois General Assembly declares at the beginning of the Cannabis Act that “employee workplace safety shall not be diminished and employer workplace policies shall be interpreted broadly to protect employee safety.”  Illinois Governor J.B. Pritzker is expected to sign the legislation this month.

Section 10-50 of Cannabis Act specifically identifies the following protections for employers:

• The Cannabis Act does not require employers to permit an employee to be under the influence of or use cannabis in the workplace or while performing the employee’s job duties or while on call.
• The Cannabis Act does not limit or prevent an employer from disciplining or terminating an employee for violating an employer's employment policies or workplace drug policy.
• Employers can maintain 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, while performing job duties off premises or while on call, if the policy is applied in a nondiscriminatory manner.
• The Cannabis Act also amends the Right to Privacy In The Workplace Act, which prohibits employers from restricting employee use of “lawful products” away from work, by incorporating employer workplace protections set forth in Section 10-50 of the Cannabis Act into the Right to Privacy in the Workplace Act. The proper interpretation of this amendment to the Right to Privacy In The Workplace Act should be that even if an employee ingests marijuana legally in Illinois while off-duty, but the employer has a drug-free workplace policy and an employee tests positive for marijuana in his system from a random drug test, the Cannabis Act should allow an employer to terminate that employee even if not impaired at work without violating the law.  Indeed, during debate on the bill, the sponsor of the Cannabis Act acknowledged that Illinois employers will still be allowed to discipline or terminate an employee for failing a drug test, including a random drug test.
• The Cannabis Act defines when an employer may consider an employee to be impaired or under the influence and allows an employer to discipline an employee based on a good faith belief that an employee is under the influence or impaired. However, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.
• The Cannabis Act specifically provides that it does not create a legal cause of action against an employer who disciplines or terminates an employee based on the employer’s good faith belief that an employee was impaired from the use of cannabis or under the influence of cannabis while at work, performing job duties, or while on call in violation of the employer’s workplace drug The Act identifies a number of symptoms an employer can consider to support its good faith belief of impairment. The Act appears to leave open the possibility that a terminated employee could maintain a cause of action for a bad faith termination of employment.
• The Act does not interfere with an employer's ability to comply with federal or State law or cause it to lose a federal or State contract or funding.

Now is the time for Illinois employers to prepare for the effective date of the Cannabis Act (January 1, 2020).  Some action items to consider include:

1. Consider whether to address with your workforce the legalization of cannabis in Illinois at all and, if so, how; e.g., will your company make a preemptive statement that cannabis impairment and/or usage while on the job will not be tolerated?  Will your company take a low-key approach to legalization and not raise it at all?  Or is there a middle-ground approach that your company takes to legalization?
2. Evaluate whether the legalization of marijuana in Illinois will affect your workplace drug policies and employment policies pertaining to disciplinary action currently in place,  including whether to specify that on-the-job marijuana consumption or being impaired or under the influence of marijuana at work, or testing positive for marijuana in the system, are against company policy and could lead to disciplinary action, up to and including termination.
3. Evaluate your reasonable accommodation policy and procedure in light of the Cannabis Act.  Employers may need to engage in an interactive process about accommodating an employee’s off-duty use of medical marijuana.  Although the Cannabis Act does not specifically require that employers make accommodations for the use of medical marijuana, Illinois previously enacted the Compassionate Use of Medical Cannabis Pilot Program Act and the Opioid Alternative Pilot Program, both of which allow patients diagnosed with specified medical conditions to possess and use medical marijuana.  In addition, recent rulings in federal and state courts outside of Illinois have found that the use of medical marijuana may be a reasonable accommodation for an employee when the use is outside of working hours and does not adversely affect safety or job performance.
4. Train supervisors on marijuana-related impairment signs and procedures to follow as a result. The Cannabis Act provides specific symptoms to look for when making a determination that an employee is “impaired” or “under the influence” of marijuana. This training will be very helpful in establishing that an employer had a “good faith belief” that the employee was impaired on the job and therefore that discipline was warranted and lawful.
5. Establish a written procedure for employees to contest a cannabis-based disciplinary decision. The Cannabis Act 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.  Having a written procedure will help employers establish that employees had a reasonable opportunity to contest a disciplinary decision.

Please contact James Oh and Kathleen Barrett if you would like to discuss assistance in preparing your workplace for the effective date of the Cannabis Act.