Roxanne Sosnowski is a partner at Sosnowski Szeto, LLP, a municipal and employment law firm in Rockford, Illinois. Attorney Sosnowski serves as counsel for the City of Freeport and South Beloit, as well as the Villages of Rockton, Cherry Valley, and Poplar Grove.

Public Act 101-0027 establishes the Cannabis Regulation and Tax Act, which was signed into law on June 25, 2019. Effective January 1, 2020, the Act legalizes the possession and private use of cannabis for individuals over 21 years of age in Illinois. Municipalities are now able to adopt and enforce local ordinances to regulate possession and consumption of cannabis so long as the regulations and penalties are consistent with the Act.

The Act has raised complicated questions from employers: Are employees allowed to use marijuana while working or on-call? Are employees allowed to use marijuana “recreationally” during off-duty hours? Finally, do we have a drug testing policy and if not, is one needed?

The Act does provide protections for employers. Nothing in the Act prohibits employers from adopting reasonable zero tolerance or drug-free workplace employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on-call. Also, nothing in the Act interferes with any federal, state or local restrictions on employment including, but not limited to, the United States Department of Transportation Regulation 49 CFR 40.151(e), nor does anything in the Act impact an employer’s ability to comply with federal or state law, or cause it to lose federal or state contracts or funding.

An initial concern of employers is when may cannabis be consumed? There are certain specific activities that an employee cannot perform while using cannabis: 1) operating, navigating, or being in actual physical control of any motor vehicle, aircraft, or motorboat while using or under the influence of cannabis; 2) use of cannabis by a law enforcement officer, corrections officer, probation officer or firefighter while on duty; 3) use of cannabis by a person who has a School Bus Driver’s Permit or a Commercial Driver’s License (CDL) while on duty; and finally, 4) driving under the influence and reckless driving based on THC impairment.

While nothing in the Act prohibits an employer from adopting reasonable zero-tolerance or drug-free workplace policies; employment policies concerning drug testing or regulations concerning smoking, consumption, storage, or use of cannabis at the workplace or while on call, the policies themselves must be applied in a nondiscriminatory manner. Since the passage of the Act, much discussion has occurred over the definition of “on-call”. The Act indicates an employee is deemed “on-call” when the employee is scheduled, with at least 24 hours’ notice by an employer, to be on standby or otherwise responsible for performing tasks related to their employment. Many local government employers question the definition and applicability of “on-call” as it relates to public safety employees that may be needed, in the instance of an emergency, with very short notice. The Act does not seem to address this issue.

With regard to discipline, an employer may discipline an employee for violating its workplace drug policy, just as an employer could before the passage of the Act. If the employer elects to discipline an employee, the employer must give the employee a reasonable opportunity to contest the finding. Also, the Act amends the Illinois Right to Privacy in the Workplace Act and prohibits discrimination for the use of a lawful product while off duty or not on call.

One thing is certain, it is vitally important that Illinois employers adopt drug testing policies to address the law. While the Act prohibits an employer from taking disciplinary action or discharging an employee due to the employee’s recreational marijuana use outside of work, an employer may discipline or discharge an employee for being under the influence of marijuana while at work. Some have opined that employers’ treatment of employees’ marijuana use will mirror their treatment of employees’ alcohol use. However, the visible and tangible effects of cannabis impairment may be more difficult to recognize than those of alcohol impairment. It is highly likely that the new Act will result in future litigation over these and many other issues.