On June 4, 2019, the Illinois legislature passed the Cannabis Regulation and Tax Act (the “Cannabis Act”). Under the Cannabis Act, Illinois residents over 21 years of age may legally possess 30 grams of marijuana flower and five grams of marijuana concentrate for their personal use, starting January 1, 2020. The 610-page Cannabis Act also provides the most extensive workplace protections for employers of any marijuana legalization statute around the country. Indeed, the Illinois General Assembly declares at the beginning of the Cannabis Act that “employee workplace safety shall not be diminished and employer workplace policies shall be interpreted broadly to protect employee safety.” Illinois Governor J.B. Pritzker is expected to sign the legislation this month.
Now is the time for Illinois employers to prepare for the effective date of the Cannabis Act (January 1, 2020). Some action items to consider include:
Consider whether to address with your workforce the legalization of cannabis in Illinois at all and, if so, how; e.g., will your company make a preemptive statement that cannabis impairment and/or usage while on the job will not be tolerated? Will your company take a low-key approach to legalization and not raise it at all? Or is there a middle-ground approach that your company takes to legalization?
Evaluate whether the legalization of marijuana in Illinois will affect your workplace drug policies and employment policies pertaining to disciplinary action currently in place, including whether to specify that on-the-job marijuana consumption or being impaired or under the influence of marijuana at work, or testing positive for marijuana in the system, are against company policy and could lead to disciplinary action, up to and including termination.
Evaluate your reasonable accommodation policy and procedure in light of the Cannabis Act. Employers may need to engage in an interactive process about accommodating an employee’s off-duty use of medical marijuana. Although the Cannabis Act does not specifically require that employers make accommodations for the use of medical marijuana, Illinois previously enacted the Compassionate Use of Medical Cannabis Pilot Program Act and the Opioid Alternative Pilot Program, both of which allow patients diagnosed with specified medical conditions to possess and use medical marijuana. In addition, recent rulings in federal and state courts outside of Illinois have found that the use of medical marijuana may be a reasonable accommodation for an employee when the use is outside of working hours and does not adversely affect safety or job performance.
Train supervisors on marijuana-related impairment signs and procedures to follow as a result. The Cannabis Act provides specific symptoms to look for when making a determination that an employee is “impaired” or “under the influence” of marijuana. This training will be very helpful in establishing that an employer had a “good faith belief” that the employee was impaired on the job and therefore that discipline was warranted and lawful.
Establish a written procedure for employees to contest a cannabis-based disciplinary decision. The Cannabis Act requires that employees be given a reasonable opportunity to contest the basis of a disciplinary decision for being impaired or under the influence on the job. Having a written procedure will help employers establish that employees had a reasonable opportunity to contest a disciplinary decision.