Illinois Legalization of Marijuana Does not Allow its Unfettered Use

August 9, 2019

The Illinois General Assembly has passed HB1438, making Illinois the tenth state, in addition to the District of Columbia, to legalize recreational marijuana.  On January 1, 2020, Illinois residents will be able to purchase marijuana from state-licensed dispensaries, and registered residents will be able to cultivate limited amounts of cannabis for personal use.

Although HB1438 legalizes the use of recreational marijuana, the repercussions of use are still developing, especially when it comes to employment considerations.  Currently, an employer may not refuse to hire a candidate or discharge and employee based on the fact that the individual possesses a medical marijuana card.  However, under the new law, Illinois employers still maintain the right to implement “drug-free” work environments, including the right to drug test employees and ban the use of marijuana and other drugs.

Therefore, although Illinois employers are banned from discriminatory hiring practices based upon the possession of a medical marijuana card, it appears they may still refuse to hire or discharge an employee who tests positive for marijuana use if they have enacted a “drug-free” policy and require drug testing as a condition of employment. This is, in part, due to the federal Controlled Substances Act (CSA), which still classifies marijuana as a Schedule 1 drug with no current medical use and high potential for abuse.

Additionally, it is still unclear, whether Illinois residents registered to cultivate marijuana will also be afforded the same protections as those with medical marijuana cards and whether employers may differentiate between those employees who use marijuana recreationally and those who have some medically-justified use.

For more information on this yet unsettled area of law and how it may affect your business, contact the attorneys at Rock Fusco & Connelly, LLC.