Starting this January 2020, people over the age of 21 will be able to legally buy recreational cannabis under the Illinois Cannabis Regulation and Tax Act. Some experts predict that the sale of recreational marijuana will generate more than $50 million next year in Illinois and up to $500 million within a few years. But how will the legalization of recreational marijuana impact workplaces?
Right to privacy
The new law amends the Illinois Right to Privacy in the Workplace Act to specifically define cannabis as a “lawful product.” Under the Privacy Act, an employer can’t discriminate against an employee for using a “lawful product.” Thus, the new law prohibits an employer from refusing to hire an employee (and prohibits employers from terminating an employee) merely for using marijuana outside of work. Employers also can’t treat employees differently for using cannabis in their personal time.
But a right to privacy does not give individuals carte blanche to use cannabis. Companies can still maintain drug-free environments and implement “reasonable” zero-tolerance workplace policies. An employer can terminate an employee if the employer has a “good-faith” belief that the employee is under the influence of cannabis at work. The new law broadly defines “workplace” to include all of the employer’s premises and any area in which the employee is required to work for the employer. The new law includes some examples of symptoms for individuals under the influence, but ultimately an employer must make a judgment call. If an employee is terminated for marijuana use, then the employer must give that employee a reasonable opportunity to prove that the employee was not using cannabis.
Similarly, employers can continue to maintain drug-testing policies that prevent employees from using cannabis at the “workplace” or while the employee is “on call.” Under the law, an employee is “on call” when the employee has at least 24 hours of notice that the employee may be responsible for performing work for the employer.
Because marijuana can stay in an individual’s system longer than other substances, employers should be careful about terminating an employee who tests positive for cannabis. An employee could fail a drug test because the employee used cannabis while not “on call,” in which case terminating the employee could violate the Privacy Act.
There are additional exceptions for certain employers. The new law does not apply to companies that the U.S. Department of Transportation regulates. And the new law does not impact an employer’s ability to ensure compliance with other federal or state laws for the purposes of federal or state funding.
If you have questions about your rights and responsibilities regarding cannabis use and the workplace in Illinois, either as an employer or as an employee, reach out to experienced employment attorneys who can help you navigate this new legal landscape.