For any of our readers keeping up with the local news, you will have noticed that Illinois is no longer “considering” or “discussing” whether it should legalize marijuana for recreational use just as 10 other states have done over the past several years. As public opinion on the issue of legalization of recreational marijuana relaxes (most recent polls show 65% of the population is supportive of legalizing recreational marijuana), more and more states are looking to join the party and see this as a new revenue source. We predicted back in 2014 that within five years, the cash-strapped State of Illinois would soon be looking at this cash cow, and it appears we called it correctly.
On May 29, 2019, the Illinois Senate passed Senate Amendment 2 to HB 1438, which is actually a bill with the short description “Pawnbroker-Stolen Property.” (It can be confusing following the legislative process, but I digress.) The Senate Amendment, short-titled “Cannabis Regulation and Tax Act” allows for Illinois residents ages 21 and older to legally possess up to 30 grams of cannabis, 5 grams of “cannabis concentrate” or 500 mg of THC contained in a cannabis-infused product. Nonresidents of the same age can possess up to half of the stated limits for residents. It also sets out a system for licensing additional cultivation and dispensary systems much like that established under the “Compassionate Use of Medical Cannabis Pilot Program Act,” which was signed into law by Governor Pat Quinn back in August 2013. The bill was sent to the House the same day, and by May 30, 2019, it had already been reviewed and passed by the House Judiciary Criminal Committee. The bill is moving along fairly quickly and with little resistance, and we anticipate it will be passed in substantially its current form within the next two to three weeks and then on to the Governor, who has already said he will sign the bill.
So what impact will this have on Illinois employers? You may recall when we presented on the medical marijuana in 2014, we stated that the Act very clearly stated the law would have no impact on employers’ drug policies, including but not limited to employer “zero tolerance” policies. Employers were simply prohibited from discriminating against employees that obtained status as “qualified registered patients (QRP’s),” meaning an employer could not fire an employee simply for obtaining that status. If, however, a QRP employee subsequently fails a random drug test or post-accident drug test by testing positive for marijuana in violation of company policy, the employer is not prohibited for following its workplace drug policy and taking action against the employee for that violation so long as the employer continued to comply with the ADA and EEOC laws. (It should also be reminded that an employee’s status as a QRP does not qualify that employee for protection by the ADA, but the underlying condition from which the employee suffers and obtained that status may qualify the employee under the ADA. So please be sure to consult with your labor and employment counsel if you are seeking to enforce a workplace drug violation against a QRP employee.)
The current 439-page bill has two pages (pages 43-45) addressing employers’ rights, and the bill quite simply adopted the same language used in the 2013 “Compassionate Use of Medical Cannabis Pilot Program Act.” In short, the bill (or law when it is passed) does not prohibit employers from adopting and implementing reasonable workplace drug policies nor does it prohibit employers from disciplining employees for violating those policies.
In conclusion, employers should plan to treat employee’s use of marijuana just as they would the use of alcohol, unless the employer has a strict “drug-free workplace” policy in place. (Although alcohol is also a drug, its use and the presence of trace alcohol (i.e. below legal intoxication limit) in employees at work is generally ignored.) Employers should still keep it off and out of the employment environment, enforce policies against working while under the influence of marijuana, and if you have a “zero tolerance” or “drug free” workplace policy, make sure you enforce it should an employee fail a random or post-accident drug test.
Now would also be a good time to review your workplace policies on drugs and alcohol and consult with your legal advisors on how you want to move forward with those in light of these changing laws, including whether you want to fire employees that test positive for trace marijuana, but not terminate employees who similarly test positive for trace alcohol (i.e. below the legal intoxication limit).