Over the past few years, 31 states have legalized some form of medical or recreational marijuana use and this wave of legalization continues to grow. Since there has been no consistent approach taken related to the intersection of legalized use and employment, employers must stay vigilant about recent developments in each location in which they operate.
To assist in navigating these waters, below is a summary of the recent enactments in Illinois and Nevada, as well as an update as to newly published judicial interpretations of the medical marijuana laws in New Jersey and Michigan.
On June 4, 2019, Illinois became the 11th state in the nation to legalize the recreational use of marijuana when it passed the Cannabis Regulation and Tax Act (HB 1438). While the Act, which goes into effect on January 1, 2020, decriminalizes marijuana use, it maintains an employer’s right to prohibit such use in several respects. Specifically, the Act provides the following:
Explicit preservation of an employer’s rights to maintain a drug-free work place, conduct drug tests, and discipline or fire employees for failure to abide by employment or workplace policies. No requirement for employers to ignore their obligations under federal law (i.e. Department of Transportation regulations), nor take any action that would jeopardize government contracts or funding. No private cause of action against employers who discipline (including termination) an employee based upon a good faith belief the employee was in violation of an employment or workplace policy.
While the law gives employers great latitude to prohibit marijuana use by employees, and permits reasonable, non-discriminatory drug testing to accomplish that goal, it is less clear whether employers have the power to prohibit employees from using marijuana outside the workplace when such use does not interfere with employee job performance. If an employer intends to