Some states, including Illinois, have legalized recreational use of marijuana. Effective January 1, 2020, the Cannabis Regulation and Tax Act (CRTA) defines marijuana as a lawful product for state purposes. The impact on employers in Illinois is that this act broadly amends the Illinois Right to Privacy in the Workplace Act to prohibit discrimination against individuals who use lawful products off premises during nonworking and non-call hours. However, employers can discriminate (i.e. take disciplinary action) against employees if use impairs an employee’s ability to perform assigned duties.
Some other notes to consider as an employer:
- Zero tolerance policies based on test results alone likely violate CRTA because one can test positive for marijuana even when one is not impaired
- Key for employers is whether they have a good faith basis that the employee is impaired whilst working
- Marijuana is still illegal under federal law
- Reasonable accommodation is still unclear
With this new law, employers should treat marijuana like recreational alcohol with the understanding that, unlike alcohol, marijuana is still illegal under federal law. Employers cannot discriminate for off work use; however, they can take disciplinary actions if an employee is using marijuana on the job.
A drug test is not enough for an employer to take action, you must have additional support to back up the drug test (i.e. behavior, ability to perform job). If an employer has reasonable suspicion (see list below), they can randomly drug test. They only need one of the below to drug test. If an employer receives federal funding, the employer can have a zero-tolerance policy based on the test alone.
- Speech
- Physical Dexterity
- Agility
- Coordination
- Demeanor
- Irrational or Unusual Behavior
- Negligence or Carelessness
- Disregard for Safety
- Disruption of a Production or Manufacturing Process
- Accident Causing Injury or Property Damage
Regarding prescription medication, reasonable accommodation is still unclear. Medical marijuana is still blurry, and it is recommended that each employer have a written policy that discusses reasonable accommodation for medical prescriptions. For example: if a medication makes an employee sleepy and the employee is found sleeping on the job the employer can ask the employee to provide a doctor’s note indicating the medication the employee takes is the only medication they can take for their condition (most times the doctor will prescribe another medication).
