Illinois Passes Bill to Legalize Recreational Marijuana; Prohibits Discrimination in Employment Context Based on "Lawful Use" of Marijuana

Passed on May 31, 2019 by the Illinois General Assembly, HB 1348 legalizes the possession, use and purchase of recreational marijuana by individuals 21 years of age and older.

Governor J.B. Pritzker has indicated that he will sign the bill and if so, the law will take effect on January 1, 2020. Medical marijuana has been legal in Illinois since 2014. Combined with the passage of this law pertaining to recreational use, Illinois could become the first state to legalize possession, sales and purchase of marijuana for both purposes.

The law continues to allow employers to prohibit the use of marijuana in the workplace and to allow employers to discipline/terminate employees who violate employment or workplace drug policies. However, the law also amends the Illinois Right to Privacy in the Workplace Act by defining "lawful products" to mean products that are legal under state law. As a result, under the Right to Privacy Act, Illinois employers are prohibited from discriminating against applicants and employees who use lawful products (i.e., marijuana) off the premises of the employer during non-working and non-call hours.

Because drug tests cannot detect current marijuana impairment, employers must carefully review the new law to determine which drug screening practices remain lawful.

The law includes some exceptions. Employers regulated by the U.S. Department of Transportation's drug and alcohol testing regulations are exempt from the provisions of the act. Likewise, employers are not bound by the act if it interferes with the employer's ability to comply with federal or state laws or could result in the loss of federal or state funding.

Employers in Illinois are advised to review internal drug-testing policies and procedures, and revise them as necessary. Further, employers should consult with counsel to ensure compliance with all applicable laws.

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