The Illinois Right to Privacy in the Workplace Act (820 ILCS 55, the “Privacy in the Workplace Act”) and the Cannabis Regulation and Tax Act (the “Cannabis Act”, 410 ILCS 705) have a significant impact on the use of marijuana/THC/CBD for those who work in Illinois. This article discusses these laws and the impact on marijuana in the workplace.
Pursuant to the Privacy in the Workplace Act, it is “unlawful for an employer to refuse to hire or to discharge any individual [or to disadvantage as to compensation or terms of employment] because the individual uses lawful products off the premises of the employer during non-working and non-call hours.” In non-lawyer talk, this means workers can usually still use marijuana on their own time without punishment (termination, demotion, etc.) so long as they do not use it at work--or show up under the influence at work. The change in the law is that the Cannabis Act amended the Privacy in the Workplace Act to prohibit employment discrimination against an individual who uses lawful products that are “legal under state law”. Given that marijuana will be legal in Illinois, it is protected by the Privacy in the Workplace Act.
The law, however, still allows employers to maintain significant protection and control over an employee’s marijuana use that could impact them. For example:
- Zero Tolerance Policies Are Still Lawful: Employers still can prevent cannabis at the workplace--and even in nearby places like parking lots/vehicles. Employers, of course, can still discipline/terminate employees whose marijuana use impairs an employee’s ability to perform the employee’s assigned duties. So, for example, an employee under the influence of marijuana in the employer’s workplace can be fired even if they used marijuana before work at home. In fact, the Cannabis Act specifically says that it does not “prohibit an employer from adopting 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 provided that the policy is applied in a nondiscriminatory manner”. 410 ILCS 705/10-50.
- Can I be fired/not hired in Illinois for failing a work drug test? There is a difference of opinion about this issue. On the one hand, the Privacy in the Workplace Act says very clearly that it is “unlawful for an employer to hire or discharge” someone because they used marijuana on their own time in a way that does not impact work. But, on the other hand, the Cannabis Act says that an employer can have a policy mandating a “drug free workplace” and that it does not “create or imply a cause of action for any person against an employer for: actions taken pursuant to an employer's reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test” 410 ILCS 705/10-50 This language was added on December 4, 2019 just a few weeks before the law went into effect. The Illinois business community lobbied in Springfield to create this additional language. Employers and their lawyers have relied upon this last-minute amendment to the law to say that they are permitted to fire (or not hire) someone because of a failed drug test. An employee, however, would point out that these two laws can be read together to say that employers can require a drug test, but if marijuana is detected, the employer must still allow the employee to show that he or she did not use it in a manner that impacted work. This is an issue that will either be resolved in the courts or clarified by the legislature.
- How Do Employers Prove Someone Is Under The Influence At Work: The Cannabis Act requires that an employer have a good faith belief that an employee was under the influence of marijuana while at work. 410 ILCS 705/10-50. This should be shown through articulable criteria, i.e., agility and coordination problems, demeanor, unusual behavior, or carelessness in operating machinery. Listening to Bob Marley is not enough. Employers would be wise to have a written a checklist to have a supervisor articulate the specifics. Nevertheless, even if the employer has a good faith belief of marijuana us, the Cannabis Act requires that if an employer elects to discipline/terminate, then the employer must afford the employee a reasonable opportunity to contest the basis of the determination. This is a significant right not typically afforded to at-will workers in the private sector by a law.
- Doesn’t a Drug Test Prove an Employee Was Under the Influence At Work: The problem with a drug test is that current testing technology does not show whether someone was under the influence of marijuana while at work because THC can remain in the body for weeks. So, for example, suppose Mary Jane had a rough work week and smokes marijuana after work on Friday while watching Rick and Morty on television. On Monday morning she shows up to work and is given a drug test. She tests positive for marijuana. This does not mean Mary Jane was under the influence at work. The presence of THC in the body can vary greatly depending on the strength of the product used, the sensitivity of the test, the size and make-up of the individual tested (i.e., how much fat they have).
- Are there any special rules? Yes, for example, employers regulated by the US Department of Transportation and federal or state contractors are exempt.
- Isn’t marijuana illegal under federal law? Yes, under the federal Controlled Substances Act, marijuana is a controlled substance. That’s what makes this law so interesting; there may be challenges to this law on the basis of federal preemption.
- What about medical use of marijuana? The Cannabis Act does not provide much clarity on this. But, Illinois previously enacted the Compassionate Use of Medical Cannabis Pilot Program Act which allows certain medical patients to use medical marijuana; under Illinois law employers are prohibited from penalizing a patient for his or her status as a qualifying medial cannabis patient unless to do so would put the employer in violation of federal law or would cause it to lose a monetary or licensing-related benefit under federal law. 410 ILCS 130/40
Here's where it becomes interesting: The Americans with Disabilities Act (ADA) and related Illinois employment laws require employers to make reasonable accommodations if an employee can perform the essential functions of their job. Under certain circumstances, the use of medical marijuana may be a reasonable accommodation for an employee and the law is developing in this area. While traditionally, federal laws like the ADA would not protect illegal drug use (again, marijuana remains illegal under federal law), we predict that with marijuana becoming legal in Illinois, more courts will be receptive to its use for medical purposes, i.e., for an accommodation or for health-related leave. In Massachusetts, for example, a court held that an employee with Chron’s Disease, combined with irritable bowel syndrome, who was fired because she tested positive for marijuana use had the right to assert claims under a state disability law. See, Barbuto v. Advantage Sales and Marketing, LLC, 477 Mass. 456 *; 78 N.E.3d 37 (2017).
In Illinois, you can file discrimination complaints for medical marijuana use with the state of Illinois and also additional agencies if you are located in Chicago and/or Cook County.
- If you used marijuana for a disability and got fired as a result, here is a sample letter you can write to your employer
I have the following disability ____________________. I am able to perform the essential functions of my job. I utilize marijuana for my disability because it helps me [explain how it helps] I do not use marijuana in a manner that makes me under the influence at work. You can call my medical provider at __________________________ I need to keep working. Please meet with my so we can discuss my disability and how we can be assured that work remains safe.
- What should I do if I am accused of using marijuana at work in Illinois? If you were under the influence of marijuana at work, there is not much you can do. However, if you were using it on your own time, then write a letter that says:
I was not under the influence of marijuana at work. Under the Illinois Right to Privacy in the Workplace Act, it is unlawful for an employer to refuse to hire or to discharge any individual … because the individual uses lawful products off the premises of the employer during nonworking hours.” 820 ILCS 55/5(a). The passing of the Cannabis Act made recreational cannabis use legal in Illinois, and the law itself says that “lawful products” means “products that are legal under state law.” I only used marijuana [explain when it was done and why you would not have been under the influence at work]
The stakes are significant in the workplace for violating these requirements. For example, if an employee is terminated unlawfully, the worker can sue and recover monetary damages, and, for a willful and knowing violation, recover statutory damages and attorney fees.