The Cannabis Regulations and Tax Act (the “Act”), legalizing the recreational use of cannabis in Illinois, was signed into law on June 25, 2019. The Act details the rights, restrictions, and obligations related to 1) an individuals’ use of cannabis; 2) a business’ commercialization of cannabis; and 3) an employers’ ability to regulate cannabis in the workplace. Here are some quick facts for employers to note:

  • Who Can Use Cannabis?

Beginning January 1, 2020, individuals who are at least 21 years of age may possess, consume, use, purchase, obtain or transport limited amounts of cannabis for personal use.

  • What Are The General Restrictions?

The Act generally prohibits individuals from driving under the influence of cannabis or smoking cannabis in any prohibited spaces identified under the Smoke-Free Illinois Act. In addition, professionals who serve the public (i.e. law enforcement officers, correction/probation officers,  firefighters, etc.) may not use or be under the influence of cannabis while on duty. The Act also prohibits an individual from undertaking any task under the influence of cannabis when doing so would constitute negligence, malpractice, or professional misconduct

  • Can Employers Still Control the Presence of Cannabis in the Workplace?

Yes, the Act allows employers to enforce its drug policies, including zero tolerance or drug-free workplace policies, and other workplace rules concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call.  As such, employers will maintain significant control over the possession and use of cannabis in the workplace.

  • Can Employers Still Screen Applicants for Cannabis Use?

Yes, the Act states that its provisions will not prohibit an employer from adopting employment policies concerning drug testing or the possession or use of cannabis in the workplace or while on call. This discretion extends to the employers process of screening job applicants, as long as such screening is consistent with the employer’s established drug policies.

  • What Disciplinary Actions Can Employers Take?

Employers can continue to discipline or terminate employees for violating workplace policies, including drug-free policies. These decisions, however, must be based on active policies and should be based on an administered drug test, to evidence that the employee was under influence. If an employer elects to discipline an employee for being under the influence, that employer must afford the employee a reasonable opportunity to contest the basis of the determination.

Final Thoughts

Employer policies limiting or prohibiting the  possession or use of cannabis must be reasonable and applied consistently. The non-discriminatory application of these policies is essential to avoiding any employer liability. Because of the complexities of the new cannabis laws, employers should be proactive in consulting their attorney regarding workplace policies and the ways in which those policies are applied to an employees’ use of cannabis.