UPDATE: Governor J.B. Pritzer signed HB 1438 into law on June 25, 2019.

On June 4, 2019, the Illinois legislature passed the Cannabis Regulation and Tax Act (the “Act”) (HB 1438).  The Act, notwithstanding federal law, declares marijuana a “lawful product” for state law purposes, and would make marijuana use, possession, and even cultivation, lawful for adults age 21 and older, starting January 1, 2020.  Governor J.B. Pritzker has pledged to make good on his campaign promise to sign the bill into law,¹ making Illinois the latest state to legalize marijuana for adult recreational use.  The law, once enacted, will provide expansive workplace protections to marijuana users.

Federal and State Law in Conflict

The Act has moved forward despite that cultivation, use, and possession of marijuana remains illegal as a matter of federal law. Under the federal Controlled Substances Act (CSA), marijuana continues to be classified as a Schedule I controlled substance, unlawful to use or prescribe, as the federal government determined decades ago that abuse potential is significant.  In fact, there have been no significant CSA enforcement proceedings against marijuana users in states that have legalized marijuana recreationally or medically, including Illinois, where the Compassionate Use of Medical Cannabis Pilot Program Act became effective in 2014.  Once the Act becomes law, however, Illinois law will for the first time contain express provisions requiring employers to relax zero-tolerance marijuana policies and limit an employer’s ability to make employment decisions on the basis of a positive marijuana test result.

Anti-Discrimination Prohibitions

The Act broadly amends the Illinois Right to Privacy in the Workplace Act to prohibit employment discrimination against an individual who uses “lawful products off the premises of the employer during nonworking and non-call hours.”² “Lawful products” will be revised to include products that are “legal under state law,” including marijuana. Employers will, however, be able to “discriminate” against marijuana users if the use “impairs an employee’s ability to perform the employee’s assigned duties.” Employers are not required to “permit an employee to be under the influence” of marijuana “in the employer’s workplace or while performing the employee’s job duties or while on call.” “Impairment,” as defined in the Act, is inextricably tied to “articulable symptoms” of impairment, rather than test results.  The Act states:

An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others. If an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

This standard arguably would foreclose adverse action based solely on a positive marijuana test result in any non-fault testing circumstances, including in pre-employment, random and pre-placement (e.g., customer-required) testing scenarios.  Even when an employer has reason to believe that an individual is impaired, a test result would merely serve to buttress the employer’s observations.  There are no exceptions for employers whose workers perform safety-sensitive tasks, except those subject to federal law or regulation.

Employer-Favorable Provisions of the Act, Including a Limited Safe Harbor

Despite the Act’s significant limits on employer action to enforce marijuana prohibition policies, it states that Illinois employers may continue to adopt and enforce zero-tolerance or drug-free work policies; the focus, however, is on prohibiting the use of marijuana while working or on company premises.  The bill expressly permits Illinois employers to:

• implement drug-testing policies or policies that prohibit the smoking, consumption, storage or other use of marijuana in the workplace or while an employee is on call; and
• prohibit an employee from being under the influence of marijuana in the workplace, while performing the employee’s duties or while on call.

Employers may discipline or terminate the employment of an employee who violates these drug-free workplace policies.

Additionally, the Act contains a limited “safe harbor” provision, stating that it shall not be construed to create or imply a cause of action against an employer for, among other things:

• subjecting an employee or applicant to reasonable drug and alcohol testing under an employer’s workplace drug policy;
• acting on an employee’s refusal to be tested or cooperate in testing procedures;
• disciplining or terminating employment, based on the employer’s good-faith belief that an employee used or possessed cannabis in the employer’s workplace, while performing the employee’s job duties, or while on call in violation of the employer’s employment;
• disciplining or terminating employment, based on the employer’s good-faith belief that an employee was impaired as a result of the use of cannabis or under the influence of cannabis while at the employer’s workplace, while performing the employee’s job duties, or while on call in violation of the employer’s workplace drug policy; or
• Any injury, loss, or liability to a third party based on an employee’s allegedly impaired actions, if the employer neither knew nor had reason to know that the employee was impaired.

The last provision will perhaps provide some peace of mind to employers concerned that they may be liable to third parties for errors or actions taken by workers under the influence of marijuana when the employer lacked the opportunity to observe signs of impairment before the incident leading to a claim.

Key Exemptions and Qualifications

The Act contains a number of key exemptions:

• The Act will not interfere with legal restrictions on employment, including U.S. Department of Transportation drug and alcohol testing regulations;
• The Act will not impact an employer’s ability to comply with the law or cause an employer to lose federal/state funding;
• The Act will not enhance or diminish other legal protections, including those under the Illinois medical marijuana law or the Opioid Alternative Pilot Program;
• The Act’s discrimination prohibitions do not apply to:
  
  • Non-profit employers that have as a primary purpose or objective discouraging use of lawful products by the general public;
  • Insurance programs that distinguish coverage based on use of lawful products, subject to certain requirements.

How the Act Limits Employers’ Marijuana Use Rules/Testing Programs and Recommended Management Action

As Governor Pritzker has confirmed he intends to sign the Act into law, employers in Illinois should take the opportunity to review their existing workplace drug and alcohol testing policies to ensure compliance with the Act’s new terms and limitations in time for the January 2020 effective date.  Employees should be made aware that marijuana remains illegal as a matter of federal law and Illinois employers can still prohibit marijuana use, possession, and impairment in the workplace, during working hours or when employees are on call.  It is advised that this zero-tolerance policy be clearly relayed to employees to avoid confusion once recreational marijuana is legalized as a matter of state law.

Employers with existing workplace testing policies should be aware that the new protections afforded to individuals who use cannabis as a “lawful product” are expected to significantly limit employers’ ability to take disciplinary action in the event an employee or applicant tests positive for marijuana.  Drug and alcohol tests measure an individual’s recent use, rather than impairment at the time of the test, providing evidence in support of likely impairment only.  Regardless of test method, the Act requires employers to identify “articulable symptoms” indicating impairment.   

For that reason, employers are advised to ensure they have robust reasonable suspicion drug testing programs and supervisory impairment determination training.  Such a program should include a clear written policy outlining the circumstances that can trigger reasonable suspicion drug testing as well as training opportunities for the managerial or supervisory employees responsible for monitoring the workplace and identifying issues that may be evidence of employee impairment. 

Finally, the Act emphasizes the importance of a clear, written policy outlining the employer’s expectations and intentions as they relate to drug and alcohol use in the workplace.  Illinois employers that previously have not implemented a written policy should consider doing so before the Act takes effect on January 1, 2020.