Seyfarth Synopsis: The Illinois General Assembly has been working on a marijuana legalization bill this session. The Senate Bill would protect employer rights to ban marijuana and discipline employees for use.

Across the country, states are moving to legalize medical and recreational marijuana. In states that legalize recreational marijuana, employers and drug testing services have seen significant increases in positivity rates for marijuana metabolites. Wider marijuana use will require employers to take action to ensure safe work environments for their employees, especially in safety sensitive settings. Drug policies must be updated and must address discrimination concerns. To that end, we are closely monitoring new forms of discrimination claims from medical marijuana users and regarded-as disabled employees. See our recent blog concerning a related Arizona court decision.

Illinois is taking the route of full legalization of recreational marijuana. Bills are pending in the House and Senate. The House bill, HB0902, as introduced “creates the Cannabis Legalization Equity Act.” The act would provide that “notwithstanding any other provision of law, except as otherwise provided in the Act, the following acts are lawful and shall not be a criminal or civil offense under State law or the law of any political subdivision of this State or be a basis for seizure or forfeiture of assets under State law for persons 21 years of age or older”:

  1. Possessing, consuming, using, displaying, purchasing, or transporting cannabis accessories;
  2. Possessing, growing, processing, or transporting on one’s own premises no more than 24 mature cannabis plants and possession of the cannabis produced by the plants on the premises where the plants were grown;
  3. Possessing outside one’s premises no more than 224 grams of cannabis; and
  4. Assisting another person who is 21 years of age or older in any of the acts described in items (1) through (3).

The House bill would also provide an excise tax at the rate of 10% of the sale price of the sale or transfer of cannabis from a cannabis cultivation facility to a retail cannabis store or cannabis product manufacturing facility. As equity and social justice is one of the primary objectives for the House bill, it mandates that at least 51% of the licenses issued by the Department of Agriculture for cannabis cultivation facilities and at least 51% of the licenses issued by the Department of Financial and Professional Regulation for retail cannabis stores “shall be in communities disproportionately harmed by the war on drugs.”

In Senate bill, SB0007, the Cannabis Regulation and Taxation Act, is lengthy and comprehensive. Notable for employers, SB0007 would allow that:

Nothing in this Act shall prohibit an employer from adopting reasonable employment policies concerning smoking, consumption, storage, or use of cannabis in the workplace provided that the policy is applied in a nondiscriminatory manner.

Good news for employers, as drafted the Senate bill would also provide that “nothing in this Act shall limit an employer from disciplining an employee or terminating employment of an employee for violating an employer’s employment policies or workplace drug policy.”

Illinois Governor J.B. Pritzker, said recently that he’s “reached an agreement with key lawmakers” on a plan to legalize recreational marijuana in the state starting next year.

Implication for Employers

For employers, marijuana legalization will mean necessarily re-assessing company policies, especially as they relate to drug testing, and the use of recreational marijuana by key security personnel and sensitive positions within the company. The final draft is likely to contain language from the Senate bill, which should provide some safe harbor for well-crafted policies and reasonable drug enforcement. At the end of the day, employers will have to walk a fine line of balancing their drug policy objectives against applying that policy in a nondiscriminatory manner.