Employees still have a statutory right to use cannabis during non-work, non-call hours. 820 ILCS 55/5(a).Regulate by Time, Not PlaceIn addition, employers could approach this issue by drafting their employee drug policies to regulate cannabis use by time instead of place. For example, an employer is entitled to prevent the use of cannabis – and impairment from cannabis – while an employee is “performing [their] job duties” or while “on call,” regardless of whether or not the use takes place on the employer’s premises.

Still, the Act appears to control over the protections provided in the Right to Privacy in the Workplace Act, because of the caveat that:Except as otherwise specifically provided by law, including Section 10-50 of the Cannabis Regulation and Tax Act, and except as provided in subsections (b) and (c) of this Section, it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking and non-call hours. 820 ILCS 55/5(a).Employers should review their drug testing policies and consider whether to conduct pre-employment, reasonable suspicion, post-accident, or random drug tests for marijuana after it becomes legal in Illinois on January 1.Shifting cultural acceptance of marijuana in general and of marijuana as a “lawful product” in Illinois should have employers considering whether subjecting applicants to marijuana drug tests will result in fewer capable and talented job applicants if competitors do not conduct pre-employment marijuana testing. Random and reasonable suspicion marijuana testing also may pose problems because a positive test result does not necessarily prove impairment at work or active marijuana usage as marijuana can stay in the body much longer than other drugs.Other ProvisionsOther provisions in the Act unaffected by the recent amendments contain additional protections and requirements for employers.

The CRTA will amend Illinois’s Right to Privacy in the Workplace Act, which prevents employers from disciplining or discharging employees for using “lawful products off the premises of the employer during nonworking hours.” (820 ILCS § 55/5.) The CRTA will define the previously undefined phrase “lawful products” to mean “products that are legal under state law.”

bis business incubator program approved by the Department of Commerce and Economic Development, and in which an Early Approval Adult Use Dispensing Organization License holder agrees to provide a loan of at least $100,000 and mentorship for at least a year to incubate a licensee that qualifies as a “Social Equity Applicant” (defined as an individual meeting one of four criteria, for example, having resided in a Disproportionately Impacted Area for at least 5 of the preceding 10 years); or(Dispensaries only) Participate for at least two years in a sponsorship program approved by the Department of Commerce and Economic Opportunity in which an Early Approval Adult Use Dispensing Organization License holder agrees to provide an interest-free loan of at least $200,000 to a Social Equity Applicant. The sponsor shall not take an ownership stake in any cannabis business establishment receiving sponsorship services to comply with this subsection.Employer Issues: The proposed legislation amends 820 ILCS 55/5 (which prohibits discrimination for use of lawful products) to include cannabis for personal use as permitted by Illinois law. Section 10-50 regarding employment and employer liability, however, contemplates several scenarios where exceptions are necessary, including: Terminating or reprimanding an employee for being impaired on the job (including when “on call”),Terminating or reprimanding an employee for violating employee policy (policies may include “reasonable zero tolerance or drug free workplace policies or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.”)

The Illinois Legislature also anticipated a potential employment issue raised by employees who travel to a state where the purchase of marijuana has been legalized (such as Washington or Colorado). According to 820 ILCS 55/5, employers cannot refuse to hire, and cannot discharge or otherwise disadvantage, any individual with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours. This statute provides an exception permitting an employer to distinguish between employees concerning the types of insurance coverage (whether health, disability or life insurance) available based upon the employee's use of such lawful products.

There is also risk to an employer who might fire an employee as a result of using medical marijuana. The Right to Privacy in the Workplace Act, 820 ILCS 55/5(a), states that, with some exceptions, it is illegal for an employer to: "refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours."As a result of the new law, many employers are revising their drug policies to reflect the new law — and employees are urged to research their workplace's drug policies.

Lawful Consumable Products StatutesTwenty-nine states and the District of Columbia have enacted statutes giving some protections to employees who smoke. (See, Cal. Labor Code §§ 96(k), 98.6 (California); Colo. Rev. Stat § 24-34-402.5 (Colorado); Conn. Gen. Stat. § 31-40s (Connecticut); D.C. Code § 7-1703.03 (District of Columbia); 820 Ill. Comp. Stat. 55/5 (Illinois); Ind. Code § 22-5-4 (Indiana); Ky. Rev. Stat. Ann. § 344.040 (Kentucky); La. Rev. Stat. Ann. § 23:966 (Louisiana); Me. Rev. Stat. tit. 26, § 597 (Maine); Minn. Stat. § 181.938 (Minnesota); Miss. Code Ann. § 71-7-33 (Mississippi); Mo. Rev. Stat. § 290.145 (Missouri); Mont. Code Ann. §§ 39-2-313, 39-2-314 (Montana); Nev. Rev. Stat. § 613.333 (Nevada); N.H. Rev. Stat. Ann. § 275:37-a (New Hampshire); N.J. Stat. Ann. § 34:6B (New Jersey); N.M. Stat. Ann. § 50-11-3 (New Mexico); N.Y. Lab. Law § 201-d (New York); N.C. Gen. Stat. § 95-28.2 (North Carolina); N.D. Cent. Code §§ 14-02.4 (North Dakota); Okla. Stat. tit. 40, § 500 (Oklahoma); Or. Rev. Stat. §§ 659A.315, 659A.885 (Oregon); R.I. Gen. Laws § 23-20.10-14 (Rhode Island); S.C. Code Ann. § 41-1-85 (South Carolina); S.D. Codified Laws § 60-4-11 (South Dakota); Tenn. Code Ann. § 50-1-304 (Tennessee); Va. Code Ann. § 2.2-2902 (Virginia); W. Va. Code § 21-3-19 (West Virginia); Wis. Stat. § 111.31 (Wisconsin); Wyo. Stat. Ann. § 27-9 (Wyoming