Marijuana is now legal in my state, but is it a 'lawful product?' – Employee Benefit News

The trend of states legalizing both medical and recreational marijuana use continues to gain momentum. Unfortunately for employers, this also means having to wade through an ever-growing patchwork of marijuana laws across the country.

This year, both Michigan and Illinois have legalized recreational marijuana, and Nevada and New York City have added protections for pre-employment screening of marijuana use, even for recreational users. Foley has been keeping a close eye on all of these laws, but there is one discrete but important distinction for recreationally legalized marijuana.

Illinois is the most recent state to have legalized recreational marijuana. The Illinois Cannabis Regulation and Tax Act (Cannabis Act) specifically preserves employers’ rights to maintain reasonable zero-tolerance or drug-free policies, provided that those policies are applied in a nondiscriminatory manner. In the same vein, the Cannabis Act preserves an employer’s right to terminate an employee for violating said policies, as long as the employee is given an opportunity to contest any allegations.

Bloomberg News

However, employers should note that the Cannabis Act makes one notable addition to another Illinois statute, the Illinois Right to Privacy in the Workplace Act (RPWA). The RPWA precludes employers from discriminating or taking adverse employment actions against workers based on their use of lawful products outside of working hours and off premises, so long as such use does not interfere with an employee’s ability to perform his or her job duties.

The Cannabis Act adds cannabis to RPWA’s list of lawful products whose use cannot form the grounds for workplace discrimination or discipline. So, how does this square with the Cannabis Act’s provisions permitting zero-tolerance drug policies and the ability to terminate employees for violations of the same?

Looking to other states’ application of lawful activities can provide insight into how Illinois (and potentially other states

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