Earlier this year Illinois Governor J.B. Pritzker unveiled his recreational marijuana legalization plan for Illinois. On May 31, 2019, the Illinois General Assembly passed the Cannabis Regulation and Tax Act. The bill was sent to the governor on June 6, 2019, and he is expected to sign it into law, making Illinois the eleventh state to legalize cannabis for recreational use. The new law will go into effect on January 1, 2020.
Impact on Employers:
- Employers will still be allowed to maintain and enforce “drug free” or "zero tolerance" policies concerning smoking, consumption, storage, or use of cannabis in the workplace so long as the rules are applied in a nondiscriminatory manner and based on a good-faith belief that an employee is either using, possessing, or is impaired in the workplace.
- Employers will still be able to take disciplinary action, including termination, if an employee is impaired or under the influence of cannabis while in the workplace or on call.
- Employers are still subject to applicable federal regulations, for example DOT-regulated drivers must continue to comply with federal legal requirements, including drug testing.
- Employers may continue to rely on drug tests and to discipline employees or decline to hire applicants who test positive for alcohol or other illegal drugs.
However, the new law amends the Illinois Right to Privacy in the Workplace Act which prohibits an employer from refusing to hire, terminate, or take any adverse action because he or she uses alcohol and/or tobacco (lawful products) away from the workplace on nonworking time.
Therefore, effective January 1, 2020, recreational cannabis will also be considered a “lawful product” (like Alcohol and Tobacco) in Illinois and subject to the same protections of the Illinois Right to Privacy in the Workplace Act. Thus, Illinois employers will generally be prohibited from taking any adverse action because an employee lawfully consumes cannabis outside of working hours and is not impaired during working hours or while "on call."
While it is uncertain at this point whether a drug and alcohol policy that prohibits off-the-clock use of cannabis to comply with federal regulations will remain allowable in Illinois, what we do know is that the new law goes into effect January 1, 2020, so now is a good time for Illinois employers to review their drug and alcohol policies.
Employers will still be allowed to maintain and enforce “drug free” or "zero tolerance" policies concerning smoking, consumption, storage, or use of cannabis in the workplace. In addition, cannabis is still illegal under federal law, and all “safety sensitive” employees who are subject to federally mandated drug testing are still subject to applicable federal rules and regulations, such as U.S. Department of Transportation (DOT) regulations. This group of employees includes anyone who operates commercial vehicles, including train engineers, pilots, and school bus drivers. The new Illinois law does not require employers to circumvent the applicable federally mandated drug testing rules and regulations.
MRA will closely monitor and provide updates to members as needed. Members can call our 24/7 Hotline to speak with an HR Advisor or download our Drug and Alcohol Free Workplace Toolkit from the website for further assistance.
Source: Michael Hyatt, HR Government Affairs Director, MRA – The Management Association