On June 25, 2019, Illinois Governor J.B. Pritzker signed the Cannabis Regulation and Tax Act (the “Act”) to make Illinois the eleventh state to allow recreational marijuana use. Effective January 1, 2020, adults age 21 and older may purchase and possess up to 1 ounce (30 grams) of marijuana at a time from a licensed dispensary. Non-Illinois residents may possess half the amount (0.5 ounces or 15 grams). The new law will not only bring a new wave of expungements, licensure regulations and system of taxes but also new questions from Illinois employers.

What Does the New Law Mean for Illinois Employers?

The Act is not a license for employees to engage in marijuana use at the workplace or arrive to the workplace under the influence. Nothing in the Act prohibits employers from adopting a reasonable zero tolerance or drug-free workplace policy. Additionally, the Act does not prohibit employment policies that concern drug testing, smoking, consumption, storage or use of marijuana in the workplace or while on call, provided the policy is applied in a non-discriminatory manner.

However, an important part of the Illinois law also amends the Illinois Right to Privacy in the Workplace Act. In doing so, the new law prohibits an employer from taking disciplinary action against an employee who uses cannabis lawfully outside of work. This does not necessarily preclude an employer from disciplining an employee who tests positive at work for cannabis where the employee used it only off duty. That remains to be seen.

Practical Takeaways

Despite the legalization of marijuana in Illinois generally, the new legislation provides employers protection to implement and enforce drug-free workplace policies, such as prohibiting use or intoxication in the workplace, providing for termination of an employee due to impairment or proscribing hiring of an applicant who tests positive. But employers in Illinois should consider whether to accommodate an employee with a disability who uses marijuana lawfully off duty. Indeed, employers should consult with counsel about whether to permit a non-disabled employee to work when he or she used marijuana off duty but who does not come to work under the influence.

Health care employers should be especially cautious about their drug testing results, particularly where the employees perform clinical duties or even indirect patient care. Those employees who test positive could bring risks to the employer on more than one front.