On June 25, 2019, Illinois governor J.B. Pritzker signed HB 1438, the Illinois Cannabis Regulation and Taxation Act (“CRTA”), which, as of January 1, 2020, legalizes recreational use and possession of marijuana by adults aged 21 or older.  Illinois is now the eleventh US state to adopt a general law authorizing adult recreational use of marijuana (joining Alaska, California, Colorado, Maine, Michigan, Massachusetts, Oregon, Nevada, Vermont, and Washington, plus the District of Columbia).  And thirty-three states have enacted medical marijuana laws.  (We have posted about these and other marijuana-related developments impacting the workplace, for example, here, here, and here.)  What makes Illinois’ new law unique among these other states’ laws is its breadth.  For example, the CRTA addresses and attempts to create remedies for social inequities created through past enforcement of drug-related laws by authorizing the expungement of criminal convictions based on possession of less than 30 grams of marijuana.  It also directs that certain taxes from marijuana sales go to the creation of social programs and business incentives supporting those most adversely affected by drug law enforcement activities. 

Generally, the CRTA allows adults to purchase and possess marijuana from a licensed dispensary in amounts of up to a maximum of 15 grams for out-of-state residents, and 30 grams for Illinois residents (or equivalent amounts of other forms of the drug such as oils or edibles).  Only qualified patients under Illinois’ medical marijuana law may grow marijuana for personal use.

The law maintains the prohibition on possession and use of marijuana in public places, in motor vehicles (unless stored in a container and inaccessible while driving), when knowingly close to someone who is under the age of 21, and on school grounds or school buses.

The CRTA also explicitly deals with the employment-related implications of legalizing recreational marijuana in Illinois.  The statute expressly allows employers to:

• maintain “zero-tolerance” and drug-free workplace policies, including policies regarding drug testing, possession, use and/or being intoxicated or impaired by marijuana while on duty, on call, or on an employer’s property; and

• take disciplinary action against an employee who violates an employer’s established policies regarding these matters.

However, Illinois employers must be cautious in applying these policies so as not to violate the Illinois Right to Privacy in the Workplace Act (“IRPWA”) – a separate statute that has been on the books in Illinois for many years – which prohibits employers from taking an adverse employment action based on an individual’s use of legal products while off duty and not at the workplace.  “Off duty” conduct means during non-work hours and also, per amendment by the CRTA, non-on call hours.  The CRTA also amends the IRPWA to clarify that “legal products” includes all products that are legal under state law, which includes alcohol, tobacco, and as of January 1, 2020,  marijuana.

Accordingly, Illinois employers should not rely solely on a drug test as conclusive evidence of an employee’s use of or impairment by marijuana in the workplace or while on call because the metabolites tested for in a marijuana drug screen (THC and other cannabinoids) can be present in the system for several days after use and long after an individual is impaired.  For this reason, employers should rely primarily on observable indications of impairment as the basis for further investigation (including for-cause drug testing) or disciplinary action.

To this end, the CRTA explains that an employer may “consider an employee to be impaired by or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance” of their job or position.  The statute provides that examples of such symptoms include an employee’s speech, physical dexterity, coordination, irrational or unusual behavior, and disregard or negligence in the performance of their job duties, particularly with regard to safety-related matters.  Importantly, the CRTA expressly states it does not create a private cause of action by an employee against an employer who takes adverse action against them based on such a good faith belief, however, the statute does require such employers to provide the employee with an opportunity to contest the basis for the decision.

Employers also need to note that the CRTA, like other state marijuana laws, does not preempt federal law criminalizing the use and possession of marijuana, or an employer’s obligations under federal Department of Transportation (“DOT”) regulations or as a federal contractor.  Following passage of the first state law legalizing recreational drug use, the DOT issued a notice of compliance in December 2012 reinforcing its long-standing regulation against the use of marijuana by individuals holding safety-sensitive positions (e.g., pilots, commercial truck drivers, school bus drivers), expressly stating that state laws legalizing the use of marijuana “have no bearing” on the DOT’s regulated drug testing program.  The DOT specified that individuals who test positive for marijuana under such a drug testing program will not be deemed to have tested “negative” even if their use was permitted under a state law authorizing recreational or medical marijuana use.

The confluence of these and other federal and state laws regarding marijuana use and possession has created a conundrum for employers since the beginning.  Federal lawmakers continue to discuss laws that would decriminalize marijuana on the federal level, or leave the decision to the states, but at this point, no such laws are imminent.  In the interim, Illinois employers (and employers in other states that have legalized recreational marijuana use) should review their policies and procedures to ensure they comply with the intricacies of both federal and state marijuana laws, and as individual situations involving marijuana use arise, analyze them on a case-by-case basis under any the construct of other potentially applicable statutes, such as the Americans with Disabilities Act, similar state disability laws, and workers’ compensation.