Marijuana and the Workplace: 7 Things for Illinois Employers to Know

Learn how the new Illinois law legalizing recreational cannabis applies to employees in your healthcare practice.

(updated February 14, 2020)

As an employer in Illinois, you may be worried about the new state law legalizing the recreational use of marijuana. The Cannabis Regulation and Tax Act, which was passed by the legislature on May 31, 2019, was signed by Governor J.B. Pritzker on Tuesday, June 25, 2019.

Here are seven things you need to know about the new law.

1. The law took effect on January 1, 2020

If your employee handbook doesn’t say anything about marijuana, it’s out of date. Make it a priority to revise your policies and— more importantly— train your managers and supervisors on how to address issues related to marijuana and the workplace.

It is important to remember that the best policy in the world won’t save you if your supervisors don’t read it carefully or understand how to apply it. As with other complicated employment law issues, like sexual harassment or discrimination, training is critical.

2. You cannot discriminate against employees who use cannabis off-duty

Under the Illinois Right to Privacy in the Workplace Act, it is illegal to discriminate against an employee for using a “lawful product” off the premises of the employer during non-working hours, a law traditionally most often applied to off-duty consumption of alcohol. The new law makes cannabis a “lawful product,” which means you cannot fire or refuse to hire an employee for using marijuana off-duty.

While there’s more to the law that is addressed below, the quick takeaway from this is that you should avoid any discussion of marijuana in your hiring process and you should be cautious about disciplining employees for cannabis-related issues.

3. You can still prohibit the use of marijuana in the workplace

That recreational marijuana will be legalized in Illinois doesn’t mean that you have to look the other way if your employees want to enjoy some “special brownies” at lunch or smoke a joint on their break. Section 10-50(a) of the Act explicitly allows employers to have a zero-tolerance policy for cannabis in the workplace. Here’s what the statute says:

Nothing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug-free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call, provided that the policy is applied in a nondiscriminatory manner.

So, what does this mean? You can still prohibit the use of marijuana in the workplace, but you should have a written policy, and you must apply that policy uniformly to all employees.

But even if you already have a zero-tolerance or drug-free workplace policy, make sure it specifically includes marijuana and cannabis products. With the publicity legalization has received, the best way to avoid any confusion about what is allowed and not allowed is to have a clear policy that explicitly prohibits the use of cannabis and cites the section of the new law allowing employers to prohibit cannabis in the workplace.

4. You can also prohibit employees who are “on-call” from using marijuana

You may have noticed the last part of the section quoted above mentions policies that prohibit drug use while on call. The statute defines “on-call” to mean an employee is scheduled to be on standby or otherwise responsible for performing work, but there’s one important detail that you’ll need to remember. The employee must be given at least 24-hour notice that they are scheduled to be on standby.

How does this apply to healthcare professionals who are always on call? Unfortunately, the law is unclear on that point. If you have essential personnel who are always on call, you may want to consider providing carefully crafted notices (signed by the essential employees) addressing this issue.

5. You should handle employees who are impaired by cannabis at work like you would employees who are under the influence of alcohol

What about that employee who isn’t dumb enough to smoke a joint at work, but uses marijuana before starting his (or her) shift? The new law also specifically allows an employer to discipline an employee who is “impaired or under the influence of cannabis” while at work but requires that the employer “has a good faith belief” that the employee manifests specific signs of impairment, which could include coordination problems, carelessness in operating equipment, unusual behavior, or any of a number of other indications of impairment.

In short, the “reasonable suspicion” standard typically applied to employees suspected of being drunk at work now applies to employees under the influence of cannabis.

6. You may need to reevaluate your drug testing policies

One of the most significant impacts of the new law is on drug testing for cannabis. While there are some exceptions for testing required by the U.S. Department of Transportation or under a state or federal contract, most of the current forms of testing for marijuana will not be permitted under the new law unless an employer has evidence to suggest that an employee was impaired at work.

This includes pre-employment tests, where, by definition, any positive result would be off-duty. Even if you have a reasonable suspicion that an employee is impaired at the workplace, testing may be of limited value since the tests that are generally accepted by courts can be explained away by employees claiming that the positive results are from off-duty use.

7. Federal law still classifies marijuana as a controlled substance

Despite “legalization” in Illinois, marijuana remains classified as a Schedule I controlled substance under the federal Controlled Substances Act. How this conflict will be resolved— and whether it will impact the enforceability of Illinois’ new law— is still unclear.

With all of this in mind, you need to make sure your policies are up to speed, especially if you have a drug screening program, prohibit the use of illegal controlled substances outside of work, or require staff members be on call. Our attorneys can help you draft new workforce policies in accordance with the new law, just reach out to us for a free 15-minute consultation.