On May 31, 2019, the Illinois General Assembly approved the Illinois Cannabis Regulation and Tax Act (the Cannabis Act), legalizing recreational marijuana use by adults in Illinois starting Jan. 1, 2020. Illinois Governor Pritzker is expected to sign the legislation into law imminently. Upon the governor’s signature, Illinois will become the eleventh state to legalize recreational cannabis use by adults.

Under the new law, Illinois employers still will be free to ban marijuana use and possession at work, test applicants and employees for cannabis, and take action against those who test positive for the drug.

Although Illinois law prohibits employers from discriminating against employees who use legal products (e.g., tobacco, alcohol, etc.) outside the workplace, employers still will have the right to maintain a reasonable drug-free workplace policy. By this, employers still will be able to take action against employees who use the drug on the job, while “on call” (scheduled to be on standby with at least 24 hours’ notice or otherwise required to do work-related functions), or possess it in the workplace. Employers also can continue to require drug testing before hiring and during employment, so long as the employer’s drug policy is administered in a non-discriminatory manner.

Employer policies may restrict cannabis use and possession in the workplace, defined in the Cannabis Act to include any buildings, land, and parking areas under the employer’s control or any area used by an employee while doing his or her job as well as areas where workplace vehicles are located. The Cannabis Act does not specify whether a parking area jointly owned or not exclusively under the employer’s control can be included in a workplace drug policy. Therefore, employers who do not own the area where their employees' park should be cautious in disciplining or terminating employees who are found to have marijuana in their vehicles parked in areas not under the employer’s exclusive control.

Under the Cannabis Act, an employer can consider an employee impaired if the employer has a good-faith belief that the employee was impaired in violation of workplace policy and if the employee manifests “specific, articulable symptoms while working.” The new law does not define these “specific, articulable symptoms,” but does provide a laundry list of examples including debilitated speech, physical dexterity, coordination, or demeanor, irrational or unusual behavior, disrupting production, carelessly operating equipment, or disregarding safety.

Employers are required to give the employee a “reasonable opportunity” to contest the basis of the determination that he or she is “under the influence or impaired by cannabis.”

Since marijuana remains illegal under federal law, employers likely will retain broad rights to prohibit drug use at work for the foreseeable future. Any employer who does contract work for the federal government also must continue barring marijuana use by employees. Transportation workers, as well as other safety-sensitive workers, also will remain subject to drug and alcohol testing under federal regulations. Further, colleges and universities still must comply with the Drug-Free Schools and Communities Act Amendments of 1989, meaning they must prohibit cannabis use consistent with federal law.

Additionally, the Cannabis Act prohibits the use or possession of cannabis products on any playground, preschool, primary, or secondary school. This includes private homes that operate day-care or preschool like facilities. This prohibition should be reflected in the policies of employers whose employees regularly, or even occasionally, work on school premises.

Take away: The new law makes it “high time” for Illinois employers to consider (1) appropriate revisions to their drug-prohibition policies, and (2) additional training to assist supervisors in identifying the types of “specific, articulable symptoms” of marijuana impairment referenced in the Cannabis Act.