Key Cannabis Issues for Illinois Employers in 2020

By Jennifer Long

On January 1, 2020, Illinois became the 11th state to legalize adult-use cannabis. The Cannabis Regulation and Tax Act is comprehensive and impacts employers in many ways. Following Illinois’ legalization of medical cannabis in 2014, marijuana is now available for recreational use by all adults age 21 and older, while remaining an unlawful controlled substance under federal law. As a result, Illinois employers must ensure that they have considered their organization’s philosophy for dealing with marijuana in the application and disciplinary process for all positions and employees.

The Cannabis Act permits employers to maintain reasonable workplace drug policies that prohibit employees from appearing for work while impaired or under the influence of marijuana, and that provide for applicant and employee drug testing that is reasonable and nondiscriminatory. Employers may continue to bar all use or possession of cannabis on all company property, including company vehicles. Employers that are subject to federal contract requirements have additional drug-free workplace requirements. Employers may discipline employees or withdraw job offers for violations of reasonable and nondiscriminatory workplace drug policies, which may include actions taken as a result of a failed drug test. However, a “reasonable” workplace drug policy is neither defined nor described in the Cannabis Act.  In addition, to establish that an employee is impaired or under the influence of marijuana, the Cannabis Act requires employers show a good faith belief based on observation of specific, articulable symptoms of the employee’s impairment, and to allow the employee a reasonable opportunity to contest the employer’s determination. Employees may have a private right of action under the Right to Privacy in the Workplace Act for any employment actions taken in violation of the requirements of the Cannabis Act.

The Cannabis Act also includes a program that provides for automatic expungement of certain cannabis-related criminal convictions. Illinois Governor J.B. Pritzker announced on December 31, 2019, that he pardoned over 11,000 low-level cannabis convictions, which will expunge such convictions. Employers are prohibited from taking adverse action against an employee or applicant based upon an expunged criminal conviction. Employers should ensure that they do not take any adverse employment actions based on any offenses that have been expunged under the Cannabis Act.

Employers must ensure their substance use and abuse and drug testing policies accurately reflect the company’s position on drug testing for cannabis and resulting actions in the wake of a positive test for cannabis for both applicants and employees. Supervisors should be trained on these additional requirements under the Cannabis Act. For employers that intend to test for cannabis and take action in the event of positive tests, it is also essential that employee job descriptions accurately reflect the safety-sensitive, high-functioning, detail-oriented, on-call or other relevant duties and requirements of each position. Illinois companies should review and update their drug testing and substance abuse policies and human resources protocols and procedures carefully and with the assistance of counsel, including instructions to drug testing vendors and training for supervisors, to ensure that they reflect the requirements for taking action under the Cannabis Act, as well as their organization’s updated intent for dealing with marijuana in the workplace.