Illinois will soon become the eleventh state to legalize the recreational use of marijuana.  On June 25, 2019, Governor Pritzker signed into effect House Bill 1438—the Cannabis Regulation and Tax Act (“CRTA”).  The CRTA, which is set to take effect on January 1, 2020, leaves some open questions for employers, but there are a few important features with which Illinois employers should quickly become familiar.

Prohibitions on Disciplining or Discharging Employees for Off-Duty Consumption

The CRTA differs from many state laws legalizing recreational marijuana in that it explicitly protects an employee’s right to consume marijuana during off-duty hours.  (§ 900-50.)  By contrast, in some states that have legalized recreational consumption, employers remain free to adopt and enforce policies prohibiting employees from using marijuana both on and off-the-job.

The CRTA will amend Illinois’s Right to Privacy in the Workplace Act, which prevents employers from disciplining or discharging employees for using “lawful products off the premises of the employer during nonworking hours.”  (820 ILCS § 55/5.)  The CRTA will define the previously undefined phrase “lawful products” to mean “products that are legal under state law.”  (§ 900-50) (emphasis added). This is a noteworthy change because marijuana is still illegal at the federal level.

By defining “lawful products” to mean those products that are legal at a state level, the CRTA appears to prevent employers from disciplining or discharging employees for recreationally consuming marijuana during off-duty hours.  Notably however, federally regulated employers, such as those subject to federal DOT regulation, are carved out from this exemption.  (§ 10-50(g).)

Employers May Continue Drug Testing and Prohibit Working Under the Influence

Under the CRTA, employers retain the ability to adopt and enforce “reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call.”  (§ 10-50(a).)

The only explicit restrictions on these policies are that employees will not be considered to be “on-call” unless they have had at least 24-hours’ notice (§ 900-50(a)), and drug policies must be “applied in a nondiscriminatory manner.”  (§ 10-50(a)­­.)

Is a Positive Drug Test Alone a Sufficient Basis for Discipline?

The CRTA states that employers “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 employee’s performance.”  (§ 10-50(d)) (emphasis added.)  The CRTA lists symptoms of marijuana impairment, some of which include: impairment of speech or physical coordination; mental effects such as unusual behavior, odd demeanor, or negligence or carelessness in operating equipment or machinery; and disregard for their own safety or the safety of others.  (§ 10-50(d).)  The statute does not clearly indicate that employers may only take disciplinary action against employees if they exhibit these particular symptoms or what, if any, proof of such symptoms may be required.

Employees Must Have a “Reasonable Opportunity” to Contest the Employer’s Determination that They are Impaired

The CRTA requires employers to give employees a “reasonable opportunity to contest” the basis of the employer’s “good faith belief” of their impairment due to marijuana.  (§ 10-50(d).)  However, the CRTA lacks guidance as to what would constitute a “reasonable opportunity.”

Implications

In view of the CRTA’s significant changes and ambiguities, Illinois employers would be well served by:

  • Reviewing and updating workplace drug use and testing policies;
  • Implementing steps to ensure policies are consistently enforced;
  • Refraining from disciplining or discharging employees until the employee has exhibited signs of actual impairment and has been given an opportunity to explain the behavior; and
  • Documenting symptoms of on-the-job impairment, including workplace misconduct or safety incidents.
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Edward Young Edward Young

Edward “Eddie” C. Young is a senior counsel in the Labor & Employment Law Department and a member of the following Firm practice groups: Restrictive Covenants & Trade Secrets; Discrimination, Harassment & Title VII; and Whistleblowing & Retaliation.

Eddie represents employers in all…

Edward “Eddie” C. Young is a senior counsel in the Labor & Employment Law Department and a member of the following Firm practice groups: Restrictive Covenants & Trade Secrets; Discrimination, Harassment & Title VII; and Whistleblowing & Retaliation.

Eddie represents employers in all aspects of employment law, with a concentration on litigating complex employment disputes of all types before federal and state courts throughout the country, the U.S. Equal Employment Opportunity Commission, state and local human rights commissions and arbitral tribunals (e.g., FINRA and AAA).  In particular, Eddie has successfully litigated employment-related disputes alleging breach of non-compete agreements, theft of trade secrets, discrimination, sexual harassment, whistleblower retaliation, wage and hour violations, including employee misclassification claims, breach of contract, defamation, fraud and other business-related torts.  Eddie has obtained a world-wide injunction to enforce a client’s non-competition restriction on a former executive, successfully defended a client through summary judgment and appeal against retaliation claims brought by a former General Counsel, represented Fortune 500 companies in defense of high-profile harassment claims associated with the #metoo movement, and provided representation to several professional sports leagues.  He also has significant appellate experience, including successfully representing clients before the U.S. Circuit Court of Appeals for the First, Second and Seventh Circuits, as well as before the United States Supreme Court.  Eddie often draws on his litigation experience to help clients avoid the courtroom by effectuating positive change in the workplace through impactful training, counseling and developing robust employment policies.

Working in a wide range of industries, Eddie represented clients in food services, financial services, medical devices, telecommunications, higher education, sports, retail, real estate and others.

Eddie has been recognized as “One to Watch” by Best Lawyers in America since 2021 and as a “Rising Star” by Super Lawyers since 2017. He also regularly advises clients, writes and speaks on cutting-edge legal issues, including the use of Artificial Intelligence in the workplace, and legal issues arising from the collection and use of employee biometric information.

Eddie maintains an active pro bono practice, including on-going representation of a certified class of approximately 65,000 visually disabled Chicagoans in litigation challenging the City’s lack of accessible pedestrian crosswalks.  Eddie is also a member of the Firm’s Pro-Bono Committee and is a three-time recipient of the Firm’s “Golden Gavel” award for his significant pro bono contributions.

Prior to joining Proskauer, Eddie was a cum laude graduate from Loyola University Chicago School of Law. He also obtained a Master’s Degree in Human Resources and Industrial Relations from Loyola University Chicago Graduate School of Business. He began his practice at a national management-side employment law firm, and has also worked in the corporate human resources department of a national tax consulting firm and as a Fellow with the Illinois Human Rights Commission.

Photo of Hannah Morris Hannah Morris

Hannah D. Morris is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

During her time at Proskauer, Hannah has assisted in litigation and investigation matters involving workplace harassment, discrimination, and retaliation. She also assists employers…

Hannah D. Morris is an associate in the Labor Department and a member of the Employment Litigation & Counseling Group.

During her time at Proskauer, Hannah has assisted in litigation and investigation matters involving workplace harassment, discrimination, and retaliation. She also assists employers in counseling matters, such as drafting employment handbooks and researching workplace policies.

Hannah earned her J.D. from the University of Virginia School of Law. While in law school, she served as a Research Assistant for Professor Richard J. Bonnie working on matters related to juvenile justice. Additionally, she interned for the Office of the Public Defender for Arlington County and the City of Falls Church.

Prior to law school, Hannah was a Teach for America Corps member teaching Fourth Grade in Eastern North Carolina.

Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.