Illinois' new recreational Cannabis Law – what's an employer to do?

On June 25, 2019, Governor J.B. Pritzker signed into law the Cannabis Regulation and Tax Act (the Cannabis Act), which legalizes adult consumption of marijuana for recreational purposes statewide starting January 1, 2020. The Cannabis Act will allow Illinois adults age 21 and older to possess up to 30 grams of marijuana. Its passage will undoubtedly have a significant impact on how employers handle drug-related issues and drug testing going forward.

The Cannabis Act provides employers with strong workplace protections. In its introductory section, the act states, “employee workplace safety shall not be diminished and workplace policies shall be interpreted broadly to protect employee safety.” The Cannabis Act also provides that nothing in the act “shall prohibit an employer from adopting reasonable zero tolerance or drug-free workplace policies or employment policies concerning drug testing, smoking, consumption, storage or use of cannabis in the workplace,” but adds the proviso, “provided that the policy is applied in a nondiscriminatory manner.”  

The Cannabis Act does not create a cause of action by any person against an employer for subjecting an employee or applicant to “reasonable drug and alcohol testing under the employer’s workplace drug policy, including an employee’s refusal to be tested.” Similarly, an employee cannot bring a claim against an employer who disciplines or terminates him/her “based on the employer’s good faith belief that an employee used or possessed cannabis in the employer’s workplace while performing the employee’s job duties or while on call” in violation of the employer’s employment policies. The act includes a list of certain specific symptoms that can support a good faith belief but those factors are still somewhat subjective and any employee who is disciplined must be given a reasonable opportunity to contest the basis of the determination.  

In addition, the Cannabis Act extends the protections of the Illinois Right to Privacy in the Workplace Act. This act prohibits an employer from refusing to hire, terminate or otherwise disadvantage any person for using “lawful products” off of the employer’s premises during non-work hours. The definition of “lawful products” has been expanded to include products that are legal under state law.

The Cannabis Act does not pre-empt the federal Drug-Free Workplace Act which requires federal contractors to make a good faith effort to maintain a drug-free workplace by taking certain measures, such as publishing a statement regarding use of illegal drugs in the workplace and establishing a drug-free awareness program. 

All of this means that although an employer has “strong workplace protections” under the Cannabis Act, it must still exercise them judiciously in order to avoid possible claims for discrimination or bad faith termination. 

What should an employer do? 

Each employer should evaluate and pre-emptively address its drug usage policies and drug testing in relation to its workforce. Based on the new reality of legalized marijuana, does an employer want to adopt a zero-tolerance policy, a low-key approach or, perhaps, some middle ground that provides for minimal or no discipline and initial warnings in place of termination?  

As another example, does the imposition of an outright ban on possession of marijuana in the workplace suffice? That standard is easier to enforce because it does not involve a subjective element. Keep in mind that consistent application of policy in a nondiscriminatory manner is key. 

Consider training supervisors on identifying marijuana-related impairment symptoms and procedures to follow if they believe an employee is impaired — those steps could range from immediate termination to an interactive process that deals with an employee’s off-duty use of marijuana.

Finally, establish a written procedure for employees to follow if they wish to contest a disciplinary action based on a claim that the employee used marijuana in the workplace. This due process element is required under the Cannabis Act.

If you have questions, feel free to contact a Chuhak & Tecson Employment law attorney. 

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by: Daniel J. Fumagalli, Principal