Weeding Through the IL Cannabis Act Amendment: What Employers Should Watch

Illinois recently became the 11th state to legalize recreational marijuana use after the passage of the Cannabis Regulation and Tax Act (the Act), which officially takes effect on January 1, 2020. On December 4, 2019, Governor J.B. Pritzker signed an amendment (SB 1557) to the Act that addresses some of the business community’s concerns regarding what employee discipline is and is not allowed under the Act.

The Amendments

The amendments clarify that employers may maintain reasonable workplace drug policies. These policies may include reasonable drug and alcohol testing for employees or applicants, as well as random nondiscriminatory drug testing. Employers may discipline or terminate employees for failing nondiscriminatory drug tests and may withdraw job offers from applicants who fail the same. Notably, all provisions regarding impairment and “good faith belief” remain in effect, putting the impetus on employers to familiarize themselves with the legal benchmark for impairment.

How This Affects Employers

Employers no longer need to worry about blowback from nondiscriminatory drug testing. However, since all provisions about “good faith belief” remain in place, employers that seek to drug test or discipline employees based on reasonable suspicion of impairment must still articulate a “good faith belief” and must continue to provide employees with the opportunity to contest the determination.

Employers should remain cautious when disciplining employees or applicants who are registered medical marijuana users. Though the Illinois Right to Privacy in the Workplace Act (which prohibits employers from restricting employees’ use of legal products outside of work) does exempt certain parts of the Act, it does not exempt provisions of the Compassionate Use of Medical Cannabis Program Act. Employers may face liability from registered users for discipline related to their use of legal products outside the workplace.

Finally, employers should continue to ensure their workplace policies are reasonable and are applied in a nondiscriminatory fashion to avoid liability under the Act.