Workplace Impact of Recreational Marijuana in IL

Labor & Employment Workforce Watch
October 2019

In the recently-passed Cannabis Regulation and Tax Act, Illinois legalized recreational marijuana effective January 1, 2020. The legalization of recreational marijuana will have a significant impact on workplace drug policies in Illinois. Marijuana is a drug that remains in a person’s system for an extended period of time after use, which means that while a workplace drug test can determine if someone has used marijuana sometime in the recent past, the test cannot determine if the person was actually under the influence of marijuana or impaired by marijuana at work. Previously, employers in Illinois could test employees for marijuana and terminate an employee for a positive test as part of a zero-tolerance drug policy regardless of whether or not the employee was ever actually impaired at work. The new law changes this. Now, because marijuana will be considered a lawful product under the Illinois Right to Privacy in the Workplace Act, employers will not be allowed to take disciplinary action against employees who use marijuana off-duty and outside of the work premises. Furthermore, the Act specifies that employers can only take action against an employee who is impaired by marijuana at work. In practical terms, this means that, with the exception of testing that is required by some other federal or state law, employers will only be able to conduct marijuana testing where an employee appears to be under the influence at work, such as when the employee’s behavior suggests impairment Although the Act does not expressly restrict pre-employment marijuana testing or random marijuana testing, employers will no longer be able to use the results of such tests against an employee or applicant because the tests will not be tied to any evidence of actual impairment.