Thursday, June 20, 2019

Recreational cannabis is poised to become legal in Illinois in 2020, and Illinois employers should consider the impact now. In late May 2019, the Illinois House and Senate approved the Cannabis Regulation and Tax Act (the “CRTA”), which Illinois Governor J.B. Pritzker has promised to sign into law.

This much is clear: assuming that Governor Pritzker signs (or does not timely veto) the CRTA, on January 1, 2020, it will be legal in Illinois for individuals 21 and older to possess 30 grams of cannabis flower, 5 grams of cannabis concentrates and .5 grams of edible cannabis-infused products for recreational purposes. However, the impact the CRTA’s passage will have on Illinois employers is more hazy.

Notably, similar to Illinois’ Compassionate Use of Medical Cannabis Pilot Program Act, effective as of 2014, the CRTA does not prohibit employers from adopting “reasonable” zero-tolerance or drug-free workplace policies. The CRTA further permits employers to drug test, and specifies that nothing in the law “limit[s] or prevent[s] an employer from disciplining an employee or terminating employment of an employee for violating an employer’s employment policies or workplace drug policy.” In addition, nothing under either law requires an employer to permit employees to work while under the influence of cannabis, or to possess cannabis while at work.

However, the CRTA also provides that there is no cause of action against an employer (under the CRTA, at least) where, for example, the employer disciplines or terminates an employee based on its good faith belief that the employee, in violation of the employer’s policies, (i) used or possessed cannabis or (ii) was impaired by or under the influence of cannabis while at work, while performing job duties or while on call. However, it is not clear if a good faith belief can be based only on the employee’s failure of a drug test for marijuana (particularly because an employee may test positive for the drug long after having used it).

Further, and notably, the CRTA also amended the Illinois Right to Privacy in the Workplace Act (the “Privacy Act”). If the CRTA becomes law, the Privacy Act will provide that except as otherwise provided by law – including the provisions of the CRTA referenced above regarding employer policies, permissible prohibitions and employer liability – an employer cannot take adverse action against an employee or applicant based only on his or her use of products outside of work that are lawful under state law, which will include marijuana. Assuming these changes go into effect, employers who currently engage in pre-employment testing for marijuana should reevaluate whether they wish to continue that practice, given that a positive drug test may only indicate the use of marijuana outside of work (in a manner consistent with state law). In addition, employers should reconsider their practices which may call for or allow testing for marijuana even in the absence of evidence that the employee is impaired.

The CRTA leaves employers with many unanswered questions, including how to best prepare for it once it becomes law. A few things, however, are apparent:

Employers should consider promptly training their supervisors regarding how to recognize, document and promptly report the signs of impairment due to suspected marijuana use, or other drug use.

Employers should carefully review their drug-free workplace policies to ensure that they are appropriately drafted to stay within the bounds of the law (in Illinois and wherever else they may have employees), and to provide flexibility where appropriate.

Employers should reevaluate their drug-testing policies and reconsider whether pre-employment and random drug tests, in particular, make sense.

Finally, employers should continue to be mindful that marijuana remains prohibited by the federal Controlled Substances Act (the “CSA”). Courts around the country have differed in their conclusions as to whether an employer can rely on the CSA, and its prohibition against marijuana, in making employment decisions. Further, we do not have definitive answers in Illinois, or from the Seventh Circuit, as to whether the use of medical marijuana outside of work (but which would result in a positive drug test regardless) must be accommodated under the Illinois Human Rights Act or the Americans with Disabilities Act. Employers are encouraged to act with caution, and to seek legal counsel, when evaluating the appropriate steps to take when faced with issues relating to the use of recreational or medical marijuana.