Cannabis Regulation and Tax Act, legalizing the recreational use of marijuana in Illinois. Governor Pritzker is expected to sign the legislation into law this week. Starting on January 1, 2020, those 21 and older would be permitted to possess up to 30 grams of marijuana, 500 mg of edible marijuana products and to use marijuana in most private residences and cannabis lounges. The law also allows for the expungement of many prior convictions for marijuana possession.
The law permits employers to adopt zero tolerance policies for the use, possession, and distribution of marijuana in the workplace. So, employers can discipline employees who show up to work high or who have marijuana with them. Employers can also continue to drug test employees.
However, there is one very important caveat: employers cannot punish employees for using marijuana outside of work. The law amends the Illinois Right to Privacy Act to state that employees cannot be disciplined for using lawful products outside of work like alcohol, tobacco, and now marijuana.
So, employees who test positive for cannabis in a drug test can only be disciplined if the test determines that the employee came to work under the influence of marijuana. If the marijuana remains in the employee’s system as a result of use during the employee’s off-hours, then the employee cannot be disciplined. Since drug testing generally does not clearly indicate when an employee consumed cannabis, relying solely on a drug test to determine whether an employee is under the influence of marijuana at work is probably not a good decision for employers. Instead, employers may want to check for other indications of marijuana intoxication like bloodshot eyes, impaired motor function, and unusual behaviors.
The law also allows employees to contest the basis for any discipline arising from alleged cannabis impairment. So, employers should make sure that they keep good records of employee conduct that warranted discipline for cannabis impairment.
Another important thing to note is that the federal Drug Free Workplace Act is still in effect. That law requires all federal grant recipients and federal contractors to adopt a zero-tolerance policy at their workplaces and certify to the federal government that their workplaces are drug free. So, employers receiving federal contracts or grants should not permit marijuana to be used or brought into the workplace.
Going forward, employers should amend any employment policies that discipline employees for out-of-work use of marijuana. Changes to collective bargaining agreements and employee contracts may also be necessary. Employers should make sure that their employees understand changes to employer policies and should conduct training with supervisors to ensure that they understand that they cannot discipline an employee for out-of-work use of marijuana. Doing so, which would be a violation of the Right to Privacy Act, could subject the employer to fines and lawsuits requiring them to pay backpay, attorneys’ fees, and court costs.