Last month, the Illinois Senate and General Assembly passed the Cannabis Regulation and Tax Act ("the Act"). The Act is the first legislative initiative to legalize the sale and possession of recreational marijuana for adults 21 and older. Industry experts expect it to create one of the largest markets in the nation. They also believe that it could help pave the way for similar legislation in states like New Jersey and New York, which have yet to implement recreational marijuana without a ballot initiative.
The Act creates more employer workplace protections than any other cannabis legislation in the nation. Employers maintain the right to adopt "reasonable" zero tolerance or drug-free workplace policies so long as policies are applied in a nondiscriminatory manner. Employers can also discipline or terminate an employee based on a good faith belief that the employee is impaired or under the influence of marijuana while performing his or her job duties or while on call. The Act specifically states that there is no cause of action against employers who take such action. However, employees must have an opportunity to contest the basis of those determinations and an employer is prohibited from taking disciplinary action against employees for lawfully using cannabis outside of work.
As Illinois Governor J.B. Pritzker has already indicated that he would sign the bill, employers should review their existing drug use policies. They should train supervisors about the signs of cannabis impairment. Employers should also implement a mechanism for employees who are disciplined or terminated because of suspected drug use to challenge those decisions. These actions will be critical to establishing employers' "good faith" and compliance with the Act, which is set to go into effect on January 1, 2020.
This article was authored by Rachel Goodman, a summer associate with Montgomery McCracken.
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.
