Governor Pritzker has recently announced that he’s reached an agreement with key lawmakers on a plan to legalize recreational marijuana in Illinois starting next year. This legislation would allow adults 21 and older to legally buy cannabis for recreational use from licensed dispensaries. Illinois residents could possess up to an ounce (30 grams) of marijuana, while non-residents could possess half an ounce (15 grams). This would make Illinois the tenth state (plus the District of Columbia) to legalize recreational marijuana. Illinois legalized medicinal marijuana in 2014.
The effects of marijuana legalization laws on Illinois employers is still unresolved. Currently, an employer may not refuse to hire a candidate or discharge an employee based on the fact that the individual possesses a medical marijuana card. However, the federal Controlled Substances Act (CSA) still lists marijuana as a Schedule I drug, which declares its high potential for abuse and does not make an exception for medical use. As a result, Illinois employers may still implement “Drug-Free” policies, including drug testing, despite state laws legalizing marijuana’s use.
For example, in 2015, the Colorado Supreme Court ruled that Dish Network was lawful in terminating a quadriplegic employee who used medical marijuana at home because its use was still illegal under federal law. However, a 2017 decision construing marijuana laws in Connecticut, determined that employers cannot use the CSA to avoid discrimination lawsuits of employees who use medical marijuana in accordance with a state program because the CSA does not speak to the issue of employing marijuana users.
Employers should, therefore, think twice before implementing a zero-tolerance marijuana drug policy simply because it is illegal under the CSA. It is also unclear whether employers may differentiate between those employees who use marijuana recreationally and those who have some medically-justified use if both are legalized. For more information on this quickly-evolving area of law and how it may affect your business, contact the attorneys at Rock, Fusco & Connelly, LLC.