United States: Illinois Legalizes Recreational Marijuana – Cutting Through The Haze To Understand The Workplace Implications

Last Updated: July 25 2019
Article by Daniel B. Pasternak

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions