As we reported over the summer, on June 25, 2019, Illinois Governor J.B. Pritzker signed the Cannabis Regulation and Tax Act (the "Act") into law. This Act legalizes the use, possession, and even cultivation of marijuana by adults in Illinois age 21 and older, starting January 1, 2020. As initially enacted, the Act's provisions appeared to limit employers' ability to maintain and enforce drug-free workplace programs prohibiting marijuana use, and more specifically, to take adverse action based merely on marijuana test results absent "articulable symptoms" of impairment. Partially in response to these concerns, the Illinois legislature passed amendments to the Act on November 14, 2019, that make it clear that employers may continue to implement policies prohibiting workers from using marijuana or marijuana products, and generally allowing the employer to take adverse action based on application of reasonable testing programs. This bill is now awaiting Governor Pritzker's signature.

Marijuana Legalization Law Addresses Employment, But Hazily

The Act potentially has significant implications for employers and their drug-testing policies and programs. As enacted, the Act explicitly allows employers to take adverse action based on marijuana use only where an employee "manifests specific, articulable symptoms" of impairment. Despite other provisions of the Act suggesting employers could continue to implement "reasonable" drug and alcohol testing programs and to enforce zero-tolerance policies, that phrasing led many employers to be concerned that the new law would preclude employers from making employment decisions based solely on a positive marijuana test result in any no-fault testing circumstances, including pre-employment, random, and pre-placement testing scenarios. "Zero-tolerance" when the Act was read as a whole appeared to relate only to prohibition on on-duty in the workplace use or possession of marijuana.

As a further protection for marijuana users, the Act adds marijuana to the definition of "lawful products" under the Right to Privacy in the Workplace Act. Under this law, after January 1, an employer may not discriminate against an individual who uses "lawful products off the premises of the employer during nonworking and non-call hours." At the same time, the Right to Privacy in the Workplace Act limits the scope of that provision by referring back to the marijuana legalization statutory provisions allowing employers to enforce reasonable drug-free workplace provisions. In short, the Act as initially enacted provided little clear guidance to employers or employees concerned about its effect on their employment policies. The November amendments, once signed into law, should help bring the employment impacts of marijuana legalization into better focus.

Buzz About New Amendments: Implications for the Workplace

Meeting during what is typically a veto session in late October and November, both houses of the Illinois Legislature passed SB 1557, which includes various amendments to the Act. The amendments provide much-needed clarity for employers. Perhaps most urgently, these amendments will modify the Act's provisions on employment and employer liability, 410 ILCS 705/10-50, to make it clear that employers cannot be sued for "actions taken pursuant to an employer's reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test." In other words, employees and applicants can be turned away because of a failed drug test conducted pursuant to an employer's reasonable policy. Public use of marijuana and marijuana products also will be limited, suggesting that the presence of marijuana at employer-sponsored off-work events is unlikely to be welcomed anytime soon. The revisions to the Act will, however, clarify how Illinois residents with marijuana-related criminal convictions can have those convictions expunged, presumably expanding some individuals' work opportunities.

While it is possible that employees could still attempt to pursue discrimination claims under the Right to Privacy in the Workplace Act for actions taken based on their legal off-duty use of marijuana, or to argue that employer policies are not "reasonable," employers should have a defense to those types of claims following the amendments. Additionally, the amendments do not change the Compassionate Use of Medical Cannabis Program Act.

The specific language in the amendment that addresses pre-employment and random testing, however, signals the Illinois legislature's desire to clarify the law in such a way that allows employers to continue to maintain and enforce pre-employment and random drug-testing policies after the Act goes into effect on January 1, 2020. As the amendments have passed both houses of the legislature, the legislature has 30 days to send the bill to Governor Pritzker for his signature, who then has 60 days to sign the bill into law.

Easing Employer Anxiety: Action Items

Employers anxious about the impact of marijuana legalization in Illinois may now be able to take a deep breath and consider their options as recreational marijuana comes to the state. Immediate changes to company policy may not be necessary, but communicating expectations to employees and applicants who may be unaware that their use of marijuana could impact their employment will be important to help ensure relaxed workers and managers on January 1. These last few weeks of 2019 are the time to develop messaging, review hiring and safety protocols, and ensure your substance abuse policies are clear and understood.

In the meantime, Illinois employers may want to hold the presses on publishing any new policies that remove pre-employment, random testing, or any no-fault-based testing for marijuana.

Posted: December 2, 2019

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