Illinois’s Recreational Marijuana Law May Affect Employers in Illinois and Other States

By Timothy W. Bubenik - McMahon Berger, PC

June 10, 2019

On May 31, 2019, Illinois legislatures passed a bill making recreational marijuana legal in the state.  The bill, which was signed into law by Governor J.B. Pritzker, allows Illinois residents over the age of 21 to purchase and possess up to 30 grams of marijuana for recreation use.  Non-residents may also purchase and possess up to 15 grams of marijuana.  The law goes into effect on January 1, 2020.

Until Illinois passed this measure through legislation, previous states to authorize recreational marijuana did so via state wide referendums (except Vermont, which legalized possession, although not purchase, through legislation).  Presumably, this could set a precedent by which other states may legalize marijuana for recreational purposes through legislation, often a faster process.  We should see more in-depth regulations concerning marijuana legalization in Illinois as the full bill was over 600 pages.

The legalization of recreational marijuana in Illinois means that the drug soon will become much more accessible to individuals living and working in Illinois.  Additionally, individuals who may not have been inclined to use marijuana may be more willing to do once its use becomes legal.  Accordingly, employers may experience an increase in the number of employees who use.

Unlike medicinal marijuana, which may potentially have workplace implications due to its ties to a medical condition, employers still should be able to prohibit employees from recreational marijuana use and may still enforce drug testing procedures, particularly given the fact the marijuana is still illegal under federal law.  In fact, recreational marijuana use prohibitions are akin to those placed on alcohol as both impair their users.

However, unlike alcohol, which allows for the time of intoxication to be pinpointed via breath or blood testing, current testing for marijuana use can only determine whether an employee used within a wide period of time, typically a month.  Accordingly, employers who have adopted “reasonable suspicion” testing policies should ensure that they set clear guidelines that define reasonable suspicion and that indicators leading to that suspicion are well documented.

Additionally, Illinois employers may continue to ban marijuana use both while working and on work property as the law includes provisions allowing businesses to restrict the use of marijuana on their premises.  Therefore, employees may be disciplined for using or possessing marijuana at the workplace.

Although this law directly affect Illinois employers, it also may have effects on employers outside of the state as well.  Given Illinois’s proximity to several major cities in states where recreational marijuana is not legal, including St. Louis, Milwaukee, Memphis, and Indianapolis, employers with facilities in those locations may also see an increase in employee use.  While this is not a certainty, it would still be wise for employers with such facilities to set aside time before the end of 2019 to discuss and reinforce drug policies with employees.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.