With 2019 nearly rolled up, it is time to exhale and recap the latest dose of marijuana laws affecting the workplace. In the last twelve months, Illinois became the eleventh state to legalize recreational marijuana use by adult and several other jurisdictions passed or modified their existing laws governing marijuana and the workplace. Below is a summary of this year’s developments and some thoughts about what 2020 might bring.
Illinois Legalizes Recreational Marijuana Use
On June 25, 2019, Governor Pritzker signed the Illinois’ Cannabis Regulation and Tax Act into law, legalizing the use and possession of marijuana for adults age 21 or older starting January 1, 2020. The law, since modified, includes extensive workplace protections for employers, permitting employers to enforce drug free workplace policies—including random drug testing—and discipline or terminate employees who violate those policies, so long as those policies are applied in a nondiscriminatory manner. Employers are also shielded from liability for taking adverse actions against an employee based on the employer’s good faith belief that the employee is impaired or under the influence of marijuana while at work.
After enactment, questions arose as to whether Illinois employers who drug test their employees risked running afoul of the state’s Right to Privacy in the Workplace Act, which prohibits workplace discrimination based on an employee’s off-site and off-duty use of a “lawful product.” Fortunately, the Illinois legislature subsequently passed an amendment to clarify that employers may take adverse action against employees or rescind offers to applicants who fail a drug test conducted pursuant to an employer’s reasonable policy.
Despite the amended law’s added protections for employers, employees nonetheless may have a private right of action for a bad faith termination of employment. In addition, the amendments do not expressly address the question of whether an