Employers must tackle new Cannabis Regulation and Tax Act

Image of cannabis leaves

Recent Amendments Clarify Employer Right to Discipline for Off-Duty Use and Possession of Cannabis

By: Joshua D. Herman

joshua.herman@mhtlaw.com

Beginning January 1, 2020, it will be lawful for adults in Illinois over the age of 21 to consume and possess cannabis in accordance with the Illinois Cannabis Regulation and Tax Act (“CRTA”). The CRTA limits the amount of cannabis that may be possessed and prohibits its consumption in any “public place.” Meanwhile, the Right to Privacy in the Workplace Act (“RPWA”) prohibits employers from taking adverse employment action against employees for their use of lawful products off-premises, during non-working hours and while not on call.  This has raised questions regarding whether employers may discipline employees for use of cannabis during non-working hours.  A recent amendment to the CRTA has attempted to address this issue.

Under the CRTA as originally enacted, employers could still enforce reasonable zero-tolerance policies, including requiring random drug testing, as well as drug testing when the employer has a good faith belief an employee used, possessed or was under the influence of cannabis at work. However, it did not clearly state whether employers may discipline employees based solely on a positive drug test, without some indication the employee used, possessed or was under the influence of cannabis in the workplace, or otherwise jeopardized workplace safety.

On December 4, 2019, Governor Pritzker signed into law Public Act 101-593 (SB 1557) amending the CRTA to specify that employers may

  • implement reasonable workplace drug policies, including subjecting employees to reasonable drug testing or reasonable and nondiscriminatory random drug testing; and
  • discipline or terminate an employee or withdraw an offer of employment due to a failed drug test.

The requirement that drug policies be “reasonable” and “nondiscriminatory” suggests that testing should be random or required only under certain circumstances (such as pre-employment or following a workplace accident.)  Employers should not take this as license to test any employee suspected of consuming cannabis during non-working hours.  However, as amended, the CRTA now authorizes public employers to prohibit police, fire, and corrections officers, and paramedics from using or possessing cannabis off-duty.

Prior to January 1st, all employers should review and update their policies and employee handbooks to ensure they clearly identify prohibited cannabis-related conduct.