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What’s in the brownie? The Illinois Cannabis Regulation and Tax Act’s impact on employers
July 29, 2019 at 10:15 AM

"IL LEGAL" spelled out with wooden blocks, representing marijuana or weed being legalized in Illinois.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.

In fact, 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.

Additionally, Illinois employers may be unable to refuse to hire or otherwise disadvantage any applicant or employee because of their off-duty use of cannabis. Under the Illinois Right to Privacy in the Workplace Act (IRPWA), employers are prohibited from discriminating against employees for off-duty use of lawful products. The Cannabis Act will generally make cannabis use legal under Illinois law, but it will remain illegal under federal law.  If IRPWA is deemed to apply to the use of state-lawful products, IRPWA would allow employees to bring a private right of action for damages and employers could be on the hook for statutory penalties, attorneys’ fees and costs. We will be following developments on this issue closely.

Further items to consider:

  1. Implications of drug testing: Illinois employers need to beware that a positive drug test for cannabis is insufficient to have a good faith belief that an employee was under the influence of cannabis while at work because an employee may test positive for the drug several days or weeks after use. Instead, employers should rely on articulable symptoms, including but not limited to the employee’s speech, physical dexterity, agility, coordination, demeanor and unusual behavior.
  2. Disciplining employees: Illinois employers must have a good faith belief that an employee was impaired by cannabis at the workplace or while performing their duties before disciplining or terminating employment. If an Illinois employer elects to discipline, then the employer must afford the employee a reasonable opportunity to contest the basis of the determination.
  3. Employers regulated by USDOT and federal or state contractors: The act does not impact the prohibition on drug use and drug testing for these businesses.

While Missouri employers that have a drug-testing policy and practice can continue to follow that policy and enforce their disciplinary policies, this is a good time for both Illinois and Missouri employers to re-evaluate their disciplinary policies and procedures concerning cannabis use.

If you have questions about the Cannabis Act, developing disciplinary policies and implementing procedures for documenting symptoms that an employee is under the influence of cannabis use, please contact one of the attorneys in our Employment & Labor practice group.

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