The Illinois Cannabis Regulation and Tax Act (“Cannabis Act”) legalized the use and possession of recreational cannabis for adults age 21 or older beginning January 1, 2020. The Cannabis Act allows Illinois residents at least 21 years old to possess up to 30 grams of marijuana flower and 5 grams of marijuana concentrate for personal use.
With the legalization of marijuana in Illinois, employers are correct to be concerned with how this will impact their workplace and their zero drug tolerance policies.
Whether the Illinois Cannabis Act allows an employer to maintain a zero-tolerance drug-free workplace policy has been the source of some confusion, especially in light of Illinois’ Right to Privacy in the Workplace Act, 820 ILCS 55/5, (“Right to Privacy”), preventing an employer from disciplining an employee for use of “lawful products” during non-work hours. Employers also have to be aware of the employee’s rights under The Compassionate Use of Medical Cannabis Program Act (“Compassionate Use Act”).
Planning around these three laws - the Illinois Cannabis Act, the Illinois Right to Privacy Act and the Compassionate Use Act - requires a well-drafted policy.
The Illinois Cannabis Act
Under the Illinois Cannabis Act, employers may adopt “reasonable zero-tolerance or drug-free workplace policies, or employment policies concerning drug testing.” While less than a year old, the Cannabis Act has already been amended. The amendments provide that nothing in the Cannabis Act is intended to create liability 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 the failure of a drug test.
410 ILCS 705/10-50(e)(1).
The Cannabis Act (1) permits employers to establish non-discriminatory “reasonable zero tolerance or drug-free workplace policies” prohibiting employees from using or being under the influence of cannabis at work; (2) permits employers to discipline employees for using or being under the influence of cannabis at work and for other violations of these “reasonable zero-tolerance or drug-free workplace policies”; and (3) protects employers from liability for taking adverse actions, as long as there existed a good-faith basis for the employer to believe that the disciplined employee was under the influence of cannabis.
The Cannabis Act provides some protection for the employee. Under Section 10-50(d), “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.”
Nevertheless, there is room for interpretation under the Cannabis Act. Both “reasonable workplace drug policy” and “failure of drug test” are left undefined. What is “reasonable” and what constitutes a “failure” will have to be defined by the courts.
The Right to Privacy Act
The Right to Privacy Act prohibits employers from taking adverse action based on off-duty use of legal products. Under the Illinois Right to Privacy in the Workplace Act, 820 ILCS 55/5, it is unlawful for an employer “to refuse to hire or to discharge any individual … because the individual uses lawful products off the premises of the employer during nonworking hours.” 820 ILCS 55/5(a).
The Privacy Act states that a “lawful product” means a product that is legal under state law:
Except as otherwise specifically provided by law, including Section 10-50 of the Cannabis Regulation and Tax Act, and except as provided in subsections (b) and (c) of this Section, it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking and non-call hours. As used in this Section, "lawful products" means products that are legal under state law.
Despite still being a controlled illegal substance by federal law, with the passage of the Cannabis Act, marijuana possession and use is now legal in Illinois. Therefore, marijuana use off the premises during non-working hours may not be the basis for termination.
The Privacy Act has a carve-out for businesses whose goal it is, in part, to curb substance abuse. Right to Privacy does not apply to not-for-profits that work to end drug abuse:
(b) This Section does not apply to any employer that is a non-profit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public.
Under the carve-out, most Illinois non-profit hospitals, clinics and substance abuse prevention businesses are exempt from the Privacy Act and can regulate off-duty use of lawful substances.
The Compassionate Use Act
Even prior to the enactment of The Cannabis Act, Illinois enacted the Compassionate Use of Medical Cannabis Pilot Program Act, which was later fully enacted and the word “pilot” removed, 410 ILCS 130, most commonly referred to as the Compassionate Use Act.
Under the Compassionate Use Act, an Illinois resident with a qualifying debilitating medical condition may obtain medical marijuana after obtaining certification of their debilitating medical condition from a certified health-care professional. On August 9, 2019, the Act was amended to expand the list of debilitating medical conditions to include autism, chronic pain, irritable bowel syndrome, migraines, osteoarthritis, anorexia nervosa, Ehlers-Danlos syndrome, Neuro Behcet’s autoimmune disease, neuropathy, polycystic kidney disease, superior canal dehiscence syndrome and ulcerative colitis. 410 ILCS 130/40.
The Compassionate Use Act provides that employers cannot discriminate against employees for using medical marijuana unless permitting the use would put the employer in violation of federal law or would cause it to lose a monetary or licensing-related benefit under federal law or rules. 410 ILCS 130/50.
Nevertheless, The Compassionate Use Act allows the employer to adopt reasonable rules regarding the logistics of the marijuana use. The Compassionate Use Act provides that:
- It does not prohibit an employer from adopting reasonable regulations concerning the consumption, storage, or timekeeping requirements for qualifying patients related to the use of medical cannabis.
- It does not prohibit an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug-free workplace provided the policy is applied in a nondiscriminatory manner.
- It does not limit an employer from disciplining a registered qualifying patient for violating a workplace drug policy.
- It does not limit an employer's ability to discipline an employee for failing a drug test if failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or funding.
The Compassionate Use Act also provides that an employer may consider a qualifying employee to be impaired if the employee manifests specific, articulable symptoms while working that decrease or lessen his or her 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, negligence or carelessness in operating equipment or machinery, disregard for the safety of the employee or others, or involvement in an 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 a qualifying patient/employee under this subsection, it must afford the employee a reasonable opportunity to contest the basis of the determination.
Similar to The Cannabis Act, it does not create or imply a cause of action for any person against an employer for (1) actions based on the employer's good-faith belief that a registered qualifying patient/employee used or possessed cannabis while on the employer's premises or during the hours of employment; (2) actions based on the employer's good-faith belief that a registered qualifying patient/employee was impaired while working on the employer's premises during the hours of employment; and (3) injury or loss to a third party if the employer neither knew nor had reason to know that the employee was impaired.
Creating Workplace Policies that Conform with These Acts
Under these laws, for-profit companies may still be able to draft a reasonable drug-free workplace policy. An employer may restrict marijuana use during the employee’s work hours while performing job duties at the employer’s workplace and while on call, so long as the employer does not regulate off-duty use of marijuana.
If you have any questions, please contact Kristin Tauras at firstname.lastname@example.org. Kristin devotes a significant portion of her practice to employment litigation.