Recreational marijuana in Illinois is almost here: What employers need to know

December 13, 2019

Employment Law Alert

Author(s): Brian V. Alcala

On January 1, 2020, the recreational use of marijuana will become legal in Illinois pursuant to the Cannabis Regulation and Tax Act (the Act), signed into law earlier this year by Governor J.B. Pritzker. Just last week, on December 4, 2019, Governor Pritzker signed a new measure into law that amends the Act and provides additional clarification as to what this means for employers.

Overall, the Act, including the recent amendments, provides significant protections for Illinois employers. Most notably, the Act generally permits employers to maintain reasonable workplace policies pertaining to marijuana, and it does not require employers to allow employees to use or be under the influence of marijuana in the workplace.

With regards to workplace policies, employers are permitted to adopt and enforce reasonable zero tolerance or drug-free workplace policies and policies pertaining to “drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call,” so long as those policies are applied in a nondiscriminatory manner. Employers are also permitted to discipline or terminate employees for violating these workplace policies, subject to certain caveats. However, employers should take note that the Act also amends the Illinois Right to Privacy in the Workplace Act, which in turn prohibits an employer from disciplining or terminating an employee solely due to their lawful use of marijuana off of the employer’s premises and during nonworking hours.

Prior to disciplining or terminating an employee for being under the influence of marijuana at the workplace, the employer must have a “good faith belief” that the employee “manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position….” Some examples of those “articulable symptoms” include evidence pertaining to the employee’s speech, physical dexterity, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment/machinery, disregard for the safety of the employee and/or others, and involvement in a workplace accident involving damage to equipment/property. In other words, a positive drug test alone is generally not enough to establish impairment—the employer must also have evidence of some of those “articulable symptoms.”

Further, prior to disciplining or terminating an employee for being under the influence of marijuana, the employer must provide the employee with a “reasonable” opportunity to contest the basis for the discipline.

While the Act initially left many employers questioning whether the Act permitted drug testing without first witnessing signs of impairment (i.e., pre-employment and random drug testing), the new amendments provide additional clarity—and protection—for employers. Specifically, the new amendments provide that employers are free to (i) subject employees and applicants to reasonable drug tests, including pre-employment tests and (ii) complete “reasonable and nondiscriminatory” random drug tests. It also declares that the Act does not provide a cause of action against employers for terminating an employee’s employment or revoking an applicant’s job offer due to a failed drug test.

Looking forward to the January 1 effective date, we recommend that Illinois employers review and revise existing workplace drug and discipline policies to ensure compliance with the Act.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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