Illinois has enacted legislation (House Bill 1438) that will allow the recreational use of marijuana in the state. The law will also offer protections for employees who use marijuana while off duty. House Bill 1438 takes effect January 1, 2020.
Off-Duty Use:
Under existing law, employers are prohibited from taking adverse action against an individual because they use "lawful products" off the premises of the employer during nonworking hours.
House Bill 1438 amends the law to clarify that lawful products are ones that are lawful under state law, which will include marijuana beginning January 1, 2020.
The prohibition on taking adverse action doesn't apply to on-call employees, which are defined as those who are scheduled, with at least 24 hours' notice, to be on standby or otherwise responsible to work either at the employer's premises or at another previously designated location.
On-Duty Use:
The law doesn't:
- 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 marijuana in the workplace or while on-call provided that the policy is applied in a nondiscriminatory manner.
- Require an employer to allow an employee to be under the influence of or use marijuana in the workplace, while on-call, or while performing their job duties.
- Limit or prevent an employer from disciplining or terminating an employee for violating the employer's employment policies or workplace drug policy.
The law states that an employer may consider an employee to be impaired or under the influence of marijuana if the employer has a good-faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee's job performance, including:
- Symptoms related to the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery;
- Disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property;
- Disruption of a production or manufacturing process; or
- Carelessness that results in any injury to the employee or others.
If an employer disciplines an employee on the basis that the employee is under the influence or impaired by marijuana, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.
Relationship to Other Laws:
The law is not to be construed to:
- Interfere with any federal, state, or local restrictions on employment including U.S. Department of Transportation (DOT) regulations; or
- Impact an employer's ability to comply with federal or state law or cause it to lose a federal or state contract or funding.
For example, the DOT doesn't permit any employee in a safety-sensitive position, who is subject to its drug testing regulations, to use marijuana. If an employee in such a job fails a drug test for marijuana, the employee would be barred from performing safety-sensitive duties until the employee has seen a substance abuse professional and successfully completed the DOT's return-to-duty process, which includes a drug and/or alcohol test.
Compliance Recommendations:
Illinois employers should review policies and practices to ensure compliance with House Bill 1438. Supervisors should also be instructed on your company's rights and responsibilities under the law.
Please contact your dedicated service professional with any questions.