On May 31, 2019, the Illinois House of Representatives passed House Bill 1438, the “Cannabis Regulation and Tax Act.” Governor J.B. Pritzker, who campaigned on recreational marijuana legalization, has vowed to sign the bill into law and, if he follows through, the Act will go into effect on January 1, 2020. Before indulging, Illinois workers should be aware that the Act does not prohibit “reasonable zero tolerance or drug free workplace policies,” non-discriminatory drug testing, or prevent their employers from discharging them due to failure of a drug test.
Illinois’ Historical Restrictions on Disciplining Employees for Lawful Activities
Going back to the 1980s, Illinois has restricted employers from discriminating against employees for engaging in lawful off-premises, nonworking activities. Specifically, the Right to Privacy in the Workplace Act provides that an employer may not treat an employee unfavorably “because the individual uses lawful products off the premises of the employer during nonworking hours.” 820 ILCS 55/5(a). The Personnel Records Review Act, meanwhile, complements the Right to Privacy in the Workplace Act by prohibiting employers from the unauthorized gathering or keeping records of its employees’ “nonemployment activities.” 820 ILCS 40/9.
The New Cannabis Legalization Act Amends the Right to Privacy in the Workplace Act
The Cannabis Regulation and Tax Act, at Section 900-50, specifically amends the Right to Privacy in the Workplace Act by making it subject to Section 10-50 (“Employment”) of the Act, which allows employers to, among other things: adopt reasonable, non-discriminatory zero tolerance and drug free workplace policies, drug testing policies; prevent intoxicated employees from working; and discipline or discharge employees for violating their employers’ drug policies. These provisions make it difficult to determine how courts would evaluate an employer’s termination of an employee for cannabis use.
Would a court only find a testing program or adverse action to be reasonable if the test is too imprecise to determine when the cannabis use occurred? How can a company maintain a “zero tolerance” policy and random drug testing if they cannot terminate people they cannot conclusively proved used cannabis during working hours? These questions have yet to be resolved but will likely be tested in the future. In the meantime, employees should exercise caution using cannabis if their employers regularly conduct drug testing.
The Personnel Record Review Act May Still Offer Limited Protections for Lawful Cannabis-Using Workers
The Cannabis Regulation and Tax Act did not, however, amend the Personnel Record Review Act. So, while an employer will be able freely discharge employees for off-premises, lawful use of cannabis during nonworking hours, employers still may be limited in how they could find out that an employee is engaging in such cannabis use since the prohibition for keeping and gathering information about “an employee’s … nonemployment activities” remains on the books.
Especially since employers are expressly permitted to maintain reasonable, non-discriminatory drug testing policies, the Personnel Record Review Act offers cannabis-using workers some additional, but extremely limited, protections. Nonetheless, employers should still be mindful of the Personnel Records Review Act’s restrictions before attempting to pry into its employees’ lawful off-premises cannabis use during nonworking hours.