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ILLINOIS (Updated as of January 2020)

Legal Status of Marijuana

*Marijuana is either totally illegal, or there may be laws decriminalizing possession, or use of marijuana, or, the state may have a CBD law legalizing THC at a level constituting marijuana-derived CBD.

Understanding this report: The objective of this state report is to identify direct factors that impact employment rights, protections and obligations as they relate to an employee’s use of marijuana. In some cases, information can be confusing or even appear contradictory. This underscores the necessity of having legal counsel, specialized in marijuana and all related state laws, assist the employer in determining impactors/influences. Further, it is wise to have a professional experienced in drug-responsible workplace programs (i.e., drug-free workplace program [DFWP] consultant) assist in the development of corporate policies and operational practices. (See the NDS article, Workplace Considerations For Marijuana Use.) The subtitle categories within each state report are standardized. Because the marijuana laws and other laws directly associated to dealing with employee use of marijuana are different in every state, there may be categories within a state’s report that have no information. This indicates there has been no specific information found. Lastly, where there are quotation marks, the language is directly from published law cited just before the quote. The quoted words are significant, but it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g., disability discrimination, workers’ compensation, unemployment law). Additionally, there may be case decisions in a state, that set precedence and clarify or further detail the operational meaning of a law for an employer.

FROM THE STATE Employer Concerns Significant

• An employer may not penalize an individual solely based on statues as a medical marijuana patient unless accommodating (hiring, etc.) could jeopardize monetary or license-related benefit under federal law or rules.

Medical Marijuana Law Yes

Recreational Marijuana Law Yes (sales as of 1-1-2020)

No broad laws legalizing marijuana*

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• The law permits employers to implement reasonable regulations about employee use of marijuana including disciplining an employee for a violation of a drug-free workplace policy. (410 Illinois Comp. Stat. 130/50) “…(b) enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner.”

• Nothing requires employers to permit an employee to use while performing job duties or being on call.

• It is unlawful for an employer to refuse to hire or discharge any individual because the individual uses lawful

products off the premises of the workplace during non-working and non-call hours. On-call is, (ILCS 820 55/5(a)) “…when the employee is scheduled with at least 24 hours' notice by his or her employer to be on standby or otherwise responsible for performing tasks related to his or her employment either at the employer's premises or other previously designated location by his or her employer or supervisor to perform a work-related task.”

• Employers have protection against a cause of action if their actions were based on good faith belief that the

employee used, possessed or was under the influence on premises or during work hours.

• If an employer elects to discipline a qualifying patient, he or she must afford the employee a reasonable opportunity to contest the basis of the determination.

• Section 10-50 of the Cannabis Regulation and Tax Act. This also provides a definition of "lawful" that limits

the term to that which is lawful under state law.

• (Cannabis Regulation and Tax Act 1-5(e), 10-50(a), 10-50(e)(1)) “…Employee workplace safety should not be diminished, and employer workplace policies shall be interpreted broadly to protect employee safety."

Testing

• Nothing in the law creates a defense for the individual who fails a marijuana drug test.

• An employee is considered “impaired” when he or she manifests at least one of the following specific articulable symptoms that compromise work performance such as, (410 Illinois Comp. Stat. 130/50) “... employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment or machinery, disregard for the safety of the employee or others, or involvement in an 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 elects to discipline a qualifying patient under this subsection, it must afford the employee a

reasonable opportunity to contest the basis of the determination.

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Hiring/Termination

• It is unlawful for an employer to refuse to hire or discharge any individual because the individual uses lawful products off the premises of the workplace during non-working and non-call hours. (ILCS 820 55/5(a)) “’lawful products’ means products that are legal under state law.”

• If an employer determines to discipline an employee for impairment of being under the influence, the

employee must be given a reasonable opportunity to contest the basis of the determination. Discipline

• (410 Illinois Comp. Stat. 130/50) (c) “Nothing in this Act shall limit an employer from disciplining a registered qualifying patient for violating a workplace drug policy.”

• If an employer determines to discipline an employee for impairment of being under the influence, the

employee must be given a reasonable opportunity to contest the basis of the determination. Use/Possession

• Qualifying patients may purchase medical marijuana only from their specific dispensary as indicated on their registration form.

• Consumption is prohibited in workplaces, public places or where it can endanger others, public

transportation, and more.

• Legal patients can transport marijuana inside secured, sealed containers that are inaccessible while driving.

• Neither drivers nor passengers may consume marijuana inside a vehicle. Other Impacting Laws (e.g., drug testing, workers’ compensation, unemployment)

• Illinois’ decriminalization specifies that the legal limit for THC is 5 ng/ml in blood or 10 ng/ml in other bodily specimens. This may change as recreational marijuana becomes available.

• Unemployment claim denial – Compensation can be denied based on misconduct, (820 Illinois Comp. Stat.

405/602(A)(7)) “…misconduct means deliberate and willful violation of a reasonable rule or policy…” and shall include, “…reporting to work under the influence of… an impairing substance unless the employee,” is required to “…report to work outside of scheduled or on-call hours and informs the employer that he or she is under the influence.”

• There is workers’ compensation law that contains drug testing specific requirements if an employer wants

to expand their latitude for denying workers’ compensation claims. • Illinois has workers’ compensation law that requires drug testing to be performed according to nationally

scientifically accepted analytical methods and procedures by accredited or certified testing laboratories else

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evidence will not be admissible in any hearing under this Workers’ Compensation Act. Public works employers have separate governing law that regulates and mandates drug testing specifics.

• Workers’ compensation claim denial - A positive test or a refusal to test following an accident will be ruled rebuttable presumption that the employee’s intoxication was the proximate cause of the injury. An employee can overcome the rebuttable presumption that his or her intoxication was not the proximate cause of the injury.

• Apply the Checklist of Impacting Issues for Employee Use of Marijuana provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.

Miscellaneous

Sources (e.g. Bill Number, Authority)

• 410 Illinois Comp. Stat. 130 et al. – Medical marijuana • Cannabis Regulation and Tax Act 1-5(e), 10-50(a), 10-50(e)(1) – Recreational marijuana • ILCS 820 55/5(a) – Recreational marijuana • 820 Illinois Comp. Stat. 405/602(A) – Unemployment related • 820 Illinois Comp. Stat. 305/11 – Workers’ compensation related

DISCLAIMER: This resource, developed by Working Partners®, is meant for educational purposes only. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. An experienced attorney with proven knowledge about these issues should be consulted for legal advice. In addition, an experienced drug-free workplace professional should be relied upon for assistance on operational issues for your company’s program.