SimplyHR | Employment & Labor Blog 

Previously, we warned how the Cannabis Regulation and Tax Act (Cannabis Act) will directly impact Illinois employers’ responsibilities and liabilities when drug testing, disciplining or terminating employees because of the use or possession of cannabis.

Then, in December 2019, Gov. J.B. Pritzker signed amendments into the Cannabis Act. At first glance, it appears these amendments, Public Act 101-0593, are employer-friendly because they have relieved some of the tension between Illinois’ Right to Privacy in the Workplace Act (Right to Privacy Act) and the Cannabis Act. For example, under the amendments to the Cannabis Act, an employer may retract a job offer based on an applicant’s cannabis use before beginning employment.

Starting on Jan. 1, 2020, Illinois residents and visitors over age 21 are allowed to purchase, possess, use, or transport cannabis for recreational purposes. Illinois’ legalization of recreational cannabis under state law will impact Illinois and Missouri employers because the drug will be more accessible to their employees.

The enforcement of anti-retaliation provisions in new injury and illness reporting regulations for employers has been delayed until Nov. 1, 2016.

On May 11, 2016, the Occupational Safety and Health Administration (OSHA) published the final rule revising its regulations on the recording and reporting of occupational injuries and illnesses. The final regulations, which require employers to electronically submit information about workplace injuries and illnesses, also bar employers from retaliating against workers for reporting such incidents.

Decision may have relevance for Illinois employers as well

In a recent and somewhat surprising decision, the Colorado Supreme Court concluded that an employer legally fired an employee for violating the company’s zero-tolerance drug policy, even though the employee’s marijuana use was off-duty and legal under Colorado law.

The decision, Coats v. Dish Network, LLC, 2015 CO 44, was surprising in part because Colorado’s “lawful activities statute” makes it unlawful and discriminatory for an employer to discharge an employee for “lawful” activity outside of the workplace.

The use of medical marijuana is currently authorized in 18 states and the District of Columbia. Two of these states—Colorado and Washington—have also legalized the recreational use of marijuana. Despite these recent changes in state law, marijuana remains illegal under federal law, creating confusion as to how the passage of these laws will affect employers’ rights in the workplace.

The simple answer is that state laws legalizing marijuana (whether for medicinal or recreational use), do not change an employer’s rights. Federal law still prohibits the use of marijuana, even for medicinal purposes.