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Recreational Marijuana: What It Means For Employers

The Illinois General Assembly recently approved the use of recreational marijuana after reaching an agreement with Governor JB Pritzker. Illinois will become the 10th state to authorize the use of recreational cannabis when HB 1438 is signed into law. The Illinois Manufacturers’ Association engaged in the legislative debate to ensure that employer protections were included in the legislation. The IMA will be hosting upcoming programs and webinars to educate our member companies before the law takes effect but here are some quick questions and answers for employers. 

When will the law take effect: Illinoisans and non-residents will able to use recreational cannabis beginning on January 1, 2020. 

Who will be able to use or possess recreational cannabis: Individuals over the age of 21 years can possess or use cannabis. Illinois residents may possess no more than 30 grams of cannabis while non-resident can possess no more than 15 grams. 

Where can recreational cannabis be used: Recreational cannabis may not be used in public spaces. Local governments may authorize the use of private clubs where cannabis can be used. 

Can local governments opt out of the law: Yes. Local units of government may opt out of the law meaning that they can ban the operation of marijuana cultivators or dispensaries. Cities and counties may also issue reasonable zoning regulations such as a minimum distance from a school or church. 

Can individuals grow their own cannabis: No. Recreational cannabis may not be grown in homes. Medicinal cannabis patients, who must have a medical card from a licensed physician, may be able to maintain up to 5 plants in their residence without a cultivation or craft grower license. The plants must be secure from unauthorized access. 

Can an employer maintain a zero-tolerance policy or safe and drug free workplace: Yes. Employers may adopt reasonable zero tolerance or drug free workplace policies or employment policies concerning drug testing, smoking, consumption, storage, or the use of cannabis in the workplace or while on call. 

Can an employer discipline an employee for violating its policies regarding cannabis: Yes. An employer may discipline or terminate an employee for violations of the employer’s workplace drug policy. 

How can an employer determine if an employee is impaired: An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employer’s performance of duties and tasks. Symptoms may include speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating machinery or equipment, disregard for the safety of others, involvement in any accident that results in serious damage to equipment or property, disruption of a production or manufacturing process, or carelessness that results in any injury to the employee or others. 

Can an employee contest an impairment finding: Yes. If an employer elects to discipline an employee on the basis of impairment by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of that determination. 

Can an employer be liable for enforcing a safe and drug free workplace: The new law shall not be construed or imply a cause of action for any person against an employer for (1) subjecting the person to reasonable drug and alcohol testing including a person’s refusal to be tested or cooperate in drug testing procedures, (2) actions including termination or discipline based on the employer’s belief that the person was impaired while at the workplace or on call, or (3) injury, loss, or liability to a third party if the employer neither knew nor had reason to know that the employee was impaired. 

What is an employer’s workplace: Workplace means the employer’s premises including any building, real property, parking area under control of the employer or area used by an employee while performing the job, or vehicles whether leased, rented, or owned. An employer may further define “workplace” in a written employment policy. 

How does this law comply with federal regulations: Nothing in the Illinois law shall be construed to interfere with any federal, state, or local restrictions on employment including, but not limited to, the U.S. Department of Transportation regulation 49 CFR 401.151(e).

Can an employer refuse to hire a job applicant for possessing a medical cannabis card: No. Illinois law provides that an employer may not refuse to hire a job applicant or terminate an employee because they possess a medical marijuana card.

Will an employer know if a person has been convicted of cannabis possession: Governor Pritzker plans to automatically pardon and expunge the records of all Illinois residents who have been convicted of possessing less than 30 grams of cannabis. Individuals convicted of possessing between 30 and 500 grams may apply to the Governor for a pardon and record expungement.  The Illinois Manufacturers’ Association will be providing more information in the coming days and will be hosting a series of seminars and webinars. We expect that this law will be litigated in court as well. 

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