The Illinois Senate approved a measure on May 29 for the legalization of recreational cannabis. Given the political headwinds on the issue as well as the numbers in the Legislature there and the Illinois Governor’s support, the Illinois Chamber of Commerce changed its position from opposed to neutral with the following caveat and request to lawmakers:

  1. Make Illinois’ recreational program have the strongest employer protections in the nation.
  2. Local control, allowing local municipalities to opt out of the retail sale in their communities.

In Indiana, Statehouse leadership has staunchly resisted legalizing medical and recreational marijuana. The Indiana Chamber maintains the following position on marijuana:

The Indiana Chamber opposes the legalization of marijuana in any form for recreational use. The Chamber opposes the legalization of botanical marijuana for medical or therapeutic use, until a time when it’s efficacy and safety have been proven consistent through clinical trials. The Chamber supports the use of isolated components of marijuana, cannabinoids or similar extracts for solely medicinal purposes if approved by the Federal Drug Administration for specific illnesses and diseases.

Some of the specific employer provisions in the Illinois legislation are listed below:

  • Nothing in this Act shall prohibit an employer from adopting 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.
  • Nothing in this Act shall require an employer to permit an employee to be under the influence of or use cannabis in the employer’s workplace or while performing the employee’s job duties or while on call.
  • Nothing in this Act shall limit or prevent an employer from disciplining an employee or terminating employment of an employee for violating an employer’s employment policies or workplace drug policy.
  • An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or others, or involvement in any 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 an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.
  • Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for: (1) actions, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing under the employer’s workplace drug policy, including an employee’s refusal to be tested or to cooperate in testing procedures or disciplining termination of employment, based on the employer’s good faith belief that an employee used or possessed cannabis in the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s employment policies; (2) actions, including discipline or termination of employment, based on the employer’s good faith belief that an employee was impaired as a result of the use of cannabis, or under the influence of cannabis, while at the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s workplace drug policy; or (3) injury, loss or liability to a third party if the employer neither knew nor had reason to know that the employee was impaired.
  • Nothing in this Act shall be construed to enhance or diminish protections afforded by any other law, including but not limited to the Compassionate Use of Medical Cannabis Pilot Program Act or the Opioid Alternative Pilot Program.
  • Nothing in this Act shall be construed to interfere 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) or impact an employer’s ability to comply with federal or state law or cause it to lose a federal or state contract or funding.

 Resource: Mike Ripley at (317) 264-6883 or email: [email protected]