Illinois: Get Ready for Marijuana Legalization in 2020

Illinois is the eleventh state in the nation to legalize marijuana for recreational use, and the first to approve commercial sales of the drug.  House Bill 1438, or the “Cannabis Regulation and Tax Act,” also amends the statewide Right to Privacy in the Workplace Act to explicitly identify marijuana as a lawful product in Illinois.

As such, employers are prohibited from firing, refusing to hire, or disadvantaging any person who uses marijuana during nonworking hours and off the employer’s premises.  There remains uncertainty as to how the state law interplays with federal regulations, which still classifies marijuana as a Schedule 1 drug under the Controlled Substances Act. Additionally, applicable Department of Transportation regulations or any state or federal contract or funding requirements that address compliance with a drug-free workplace still applies.

Regardless of legalization, employers still have some protections.  Employers are permitted to adopt reasonable zero tolerance/drug-free workplace policies so long as such policies are administered in a non-discriminatory manner.  Employers are not required to tolerate employees under the influence or actively using marijuana in the workplace or while performing job duties, or employees whose use of marijuana outside of work impairs their assigned duties at the worksite. However, employees must be given a “reasonable opportunity” to contest the basis of any disciplinary measures taken due to the employer’s good faith belief that the employee was under the influence of or impaired by marijuana. Employers are also permitted to restrict possession or use of marijuana on private property, including parking lots.

Finally, the Act will expunge any convictions for possession of up to 30 grams of marijuana. This is compounded by Illinois’ Human Rights Act which prohibits inquiries into and discrimination against an individual whose criminal history record has been expunged. Since administrative expungement will take time to catch up with legal expungement when the Act goes into effect, employers must take care not to take adverse action against an applicant or employee who has a conviction for marijuana possession that may not have been administratively cleared yet in criminal records.

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