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First and foremost, I’d suggest that anyone who is currently using cannabis in Illinois - recreational or medicinal - who has a job (or not), to read the Illinois Cannabis Regulation & Tax Act.Not only does it provide you with absolutely everything you’d want to know about the cannabis situation in Illinois, but it can actually help you in this case.The good news is, in this case, everything you could want to know is in Article 10. I won’t spoil the ending for you, but you may be in a better position than you thought.Sit back and get your eyeglasses out, because it’s going to be quite a read:You should definitely pay attention to Section 25:(410 ILCS 705/10-25)Sec. 10-25.Immunities and presumptions related to the use of cannabis by purchasers.(a) A purchaser who is 21 years of age or older is not subject to arrest, prosecution, denial of any right or privilege, or other punishment including, but not limited to, any civil penalty or disciplinary action taken by an occupational or professional licensing board, based solely on the use of cannabis if (1) the purchaser possesses an amount of cannabis that does not exceed the possession limit under Section 10-10 and, if the purchaser is licensed, certified, or registered to practice any trade or profession under any Act and (2) the use of cannabis does not impair that person when he or she is engaged in the practice of the profession for which he or she is licensed, certified, or registered.(b) A purchaser 21 years of age or older is not subject to arrest, prosecution, denial of any right or privilege, or other punishment, including, but not limited to, any civil penalty or disciplinary action taken by an occupational or professional licensing board, based solely for (i) selling cannabis paraphernalia if employed and licensed as a dispensing agent by a dispensing organization; (ii) being in the presence or vicinity of the use of cannabis or cannabis paraphernalia as allowed under this Act; or (iii) possessing cannabis paraphernalia.[1]Don’t get too excited, we’re not done yet. Section 35 spells out all of the people who CANNOT use cannabis, and states:(410 ILCS 705/10-35)Sec. 10-35.Limitations and penalties.(a) This Act does not permit any person to engage in, and does not prevent the imposition of any civil, criminal, or other penalties for engaging in, any of the following conduct:(1) undertaking any task under the influence of cannabis when doing so would constitute negligence, professional malpractice, or professional misconduct;(2) possessing cannabis:(A) in a school bus, unless permitted for a qualifying patient or caregiver pursuant to the Compassionate Use of Medical Cannabis Program Act;(B) on the grounds of any preschool or primary or secondary school, unless permitted for a qualifying patient or caregiver pursuant to the Compassionate Use of Medical Cannabis Program Act;(C) in any correctional facility;(D) in a vehicle not open to the public unless the cannabis is in a reasonably secured, sealed container and reasonably inaccessible while the vehicle is moving; or(E) in a private residence that is used at any time to provide licensed child care or other similar social service care on the premises;(3) using cannabis:(A) in a school bus, unless permitted for a qualifying patient or caregiver pursuant to the Compassionate Use of Medical Cannabis Program Act;(B) on the grounds of any preschool or primary or secondary school, unless permitted for a qualifying patient or caregiver pursuant to the Compassionate Use of Medical Cannabis Program Act;(C) in any correctional facility;(D) in any motor vehicle;(E) in a private residence that is used at anytime to provide licensed child care or other similar social service care on the premises;(F) in any public place; or(G) knowingly in close physical proximity toanyone under 21 years of age who is not a registered medical cannabis patient under the Compassionate Use of Medical Cannabis Program Act;(4) smoking cannabis in any place where smoking is prohibited under the Smoke Free Illinois Act;(5) operating, navigating, or being in actual physical control of any motor vehicle, aircraft, watercraft, or snowmobile while using or under the influence of cannabis in violation of Section 11-501 or 11-502.1 of the Illinois Vehicle Code, Section 5-16 of the Boat Registration and Safety Act, or Section 5-7 of the Snowmobile Registration and Safety Act;(6) facilitating the use of cannabis by any person who is not allowed to use cannabis under this Act or the Compassionate Use of Medical Cannabis Program Act;(7) transferring cannabis to any person contrary to this Act or the Compassionate Use of Medical Cannabis Program Act;(8) the use of cannabis by a law enforcement officer, corrections officer, probation officer, or firefighter while on duty; nothing in this Act prevents a public employer of law enforcement officers, corrections officers, probation officers, paramedics, or firefighters from prohibiting or taking disciplinary action for the consumption, possession, sales, purchase, or delivery of cannabis or cannabis-infused substances while on or off duty, unless provided for in the employer's policies. However, an employer may not take adverse employment action against an employee based solely on the lawful possession or consumption of cannabis or cannabis-infused substances by members of the employee's household. To the extent that this Section conflicts with any applicable collective bargaining agreement, the provisions of the collective bargaining agreement shall prevail. Further, nothing in this Act shall be construed to limit in any way the right to collectively bargain over the subject matters contained in this Act; or(9) the use of cannabis by a person who has a school bus permit or a Commercial Driver's License while on duty.As used in this Section, "public place" means any place where a person could reasonably be expected to be observed by others. "Public place" includes all parts of buildings owned in whole or in part, or leased, by the State or a unit of local government. "Public place" includes all areas in a park, recreation area, wildlife area, or playground owned in whole or in part, leased, or managed by the State or a unit of local government. "Public place" does not include a private residence unless the private residence is used to provide licensed child care, foster care, or other similar social service care on the premises.(b) Nothing in this Act shall be construed to prevent the arrest or prosecution of a person for reckless driving or driving under the influence of cannabis, operating a watercraft under the influence of cannabis, or operating a snowmobile under the influence of cannabis if probable cause exists.(c) Nothing in this Act shall prevent a private business from restricting or prohibiting the use of cannabis on its property, including areas where motor vehicles are parked.(d) Nothing in this Act shall require an individual or business entity to violate the provisions of federal law, including colleges or universities that must abide by the Drug-Free Schools and Communities Act Amendments of 1989, that require campuses to be drug free.(Source: P.A. 101-27, eff. 6-25-19; 101-593, eff. 12-4-19.)[2]Hopefully you sat there and read all of that, because I’m not going to sit here and explain all of the people/jobs who CAN’T use cannabis.Maybe you skipped all of it because you just want the answer all nice and tidy and spelled out for you. Tricked you, because we’re not done yet.Section 50 is the real meat and potatoes. Hopefully you got this far. If you have, I commend you:(410 ILCS 705/10-50)Sec. 10-50.Employment; employer liability.(a) 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.(b) 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.(c) 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.(d) 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.(e) Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for:(1) actions taken pursuant to an employer's reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test;(2) actions 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;(3) 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(4) injury, loss, or liability to a third party if the employer neither knew nor had reason to know that the employee was impaired.(f) 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 Program Act or the Opioid Alternative Pilot Program.(g) 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.(h) As used in this Section, "workplace" means the employer's premises, including any building, real property, and parking area under the control of the employer or area used by an employee while in the performance of the employee's job duties, and vehicles, whether leased, rented, or owned. "Workplace" may be further defined by the employer's written employment policy, provided that the policy is consistent with this Section.(i) For purposes of this Section, an employee is deemed "on call" when such 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.(Source: P.A. 101-27, eff. 6-25-19; 101-593, eff. 12-4-19.)[3]SO WHAT DOES IT ALL MEAN?!?!?!?!!The bad news first.You might be one of those people who isn’t technically allowed to use cannabis in the first place. In that case, you’re probably going to get fired. Sorry!Also, if your employer has any sort of “Drug Free Workplace” or zero-tolerance policy, you’re kind of shit out of luck. They’re legally allowed to fire you - the legalization of recreational cannabis doesn’t null & void the employer’s rights in their place of business (which you may have already agreed to by signing a contract to work there). Sorry!The good news now —If you were partaking legally, your job doesn’t have any sort of explicit “Drug Free” policy, you’re not “restricted” in any way — there’s nothing they can really do about it.Hopefully you read Article 50 up there, because it does spell out some caveats - mainly about being under the influence in the workplace. Every situation will be unique, which is why I urged you in the first place to READ THE ACTUAL LAW. Every one of my footnotes link to the law itself, so you have no excuses.If you TRULY were partaking in cannabis OUTSIDE of work hours, there is NO “Drug Free” or zero-tolerance policy, and you AREN’T one of the “restricted” occupations, you can’t be fired and you get to work (and smoke) another day.Keep in mind, because of legalization and all of these provisions, employers are undoubtedly updating their policies regarding cannabis/drugs.Please make sure you are staying CURRENT on your jobs policies!Update 7/22/2020 - It’s been pointed out to me that some people with federal jobs might not realize that their federal job prohibits use of a federally illegal substance. Although I don’t understand how someone could possibly be that disconnected from the obvious, I guess I can understand the need for clarification — As a federal employee, there is NO exception for cannabis use, regardless of the legal status of cannabis in the state you live in.Footnotes[1] 410 ILCS 705/ Cannabis Regulation and Tax Act.[2] 410 ILCS 705/ Cannabis Regulation and Tax Act.[3] 410 ILCS 705/ Cannabis Regulation and Tax Act.

Most certainly, yes. Employers will still be able to maintain a drug-free workplace, including the screening of marijuana, in every state, regardless if the legal personal use or medical use of marijuana is legalized or not.As you probably know, as it is today, marijuana laws are being managed by state level government even though marijuana is still a Schedule I illegal substance and subject to the federal laws of the Controlled Substances Act of 1970.Some states’ medical marijuana laws currently prohibit an employer from discriminating against an applicant or employees status as a medical marijuana patient (MA, NY & others).Some states medical marijuana laws specifically mention that the law "does not prohibit an employer from disciplining an employee for possessing or consuming usable marijuana in the workplace, or for working while under the influence of marijuana."Other states’ medical marijuana laws do not specifically address rules for employment nor impact the workplace.Now, if (or rather, when?) marijuana is legalized at the federal level here in the United States, I do not think there will be a widespread prohibition of discrimination or otherwise any specific impacts to workplace drug & alcohol screening programs.The feds will likely treat marijuana in the workplace similar to alcohol (although it will remain to be seen if the Americans with Disabilities Act (ADA) will adopt rules classifying chronic marijuana users as an addiction/disability).The Feds will also likely reschedule THC as a lesser Schedule (Schedule III or IV) drug and look to the states to create their own rules (as they are doing now).

This is a question that we get asked more and more often these days — whether a company should consider eliminating the testing requirement for marijuana due to the fast-changing state-specific rules. A response to this question requires an understanding that there are many different rules applicable to drug and alcohol testing both, state-by-state, and applicable federal rules. The most appropriate answer would also require us to know more about what the root concerns are for a company to consider removing marijuana from their testing panel(s), and what are the company’s overall hopes and goals for their workplace screening program. In general, we advocate that employers should continue enforcing drug-free workplace programs, including the screening for marijuana use unless there is a specific reason, issue or concern that an employer can justify otherwise.In lieu of a direct engagement opportunity, we offer a breakdown of the question and related facts, to help you determine what the best course of action is for your workplace.Marijuana @ WorkCurrently, there are 10 states that have authorized the legal use of marijuana for anyone 21 years old or older (CA is "over 21-yrs old"): Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont & Washington (and Washington D.C.). Although criminal & civil penalties saw a dramatic change, it’s very important to note that each of these state's laws specifically provides that Employers do not need to accommodate employee marijuana use at work.Employers are still authorized to prohibit the use of marijuana, permitted to test for marijuana use and authorized to discipline employees that violate workplace screening programs.As of this November, 33 states (Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Washington, West Virginia (and Washington D.C.) now permit the medical use of marijuana.17 states have adopted some form of law permitting the use of Cannabidiol (CBD) (a non-psychoactive component found in hemp and marijuana plants) for patients that meet requirements from very specific lists of medical conditions. In June of this year, the Food and Drug Administration (FDA) approved the first ever cannabis-derived drug (Epidiolex) for the treatment of specific epileptic conditions. The DEA has authorized this drug as a Schedule V substance. In general, CBD products are now being sold nationwide in various forms (concentrates, oils, edibles, balms, rubs, drinks, etc.) and concentrations, with little regulatory oversite.Drug Use on the RiseDrug use in America is at its highest levels in more than a decade. According to the latest data from the National Survey on Drug Use and Health (NSDUH), an estimated 30 million people, or 11.2% of the U.S. population, used an illicit drug in the past month. One in seven people, or 20.7 million Americans, needed substance use treatment in 2017. Approximately 26 million people were current marijuana users.Overall, according to the recent Quest Diagnostics Drug Testing Index, marijuana positivity continued its five-year upward trajectory in urine testing for both the general U.S. workforce and the federally-mandated, safety-sensitive workforce. Marijuana positivity increased four percent in the general U.S. workforce (2.5% in 2016 versus 2.6% in 2017) and nearly eight percent in the safety-sensitive workforce (0.78% versus 0.84%).Increases in positivity rates for marijuana in the general U.S. workforce were most striking in states that have enacted recreational use statues since 2016. Those states include Nevada (43%), Massachusetts (14%) and California (11%).Three states also saw significant increases in marijuana positivity in federally-mandated, safety-sensitive workers: Nevada (39%), California (20%), and Massachusetts (11%). Federally-mandated, safety-sensitive workers include pilots, rail, bus and truck drivers, and workers in nuclear power plants, for whom routine drug testing is required by the DOT. You can view the Quest Diagnostics interactive map for more details on how marijuana use in your state compares to the rest of the nation.The LawsNo state, that has authorized either the personal use or medical use of marijuana, prohibits an employer from including marijuana in a work-related drug testing program. Moreover, with limited exception (Connecticut, Massachusetts, and Rhode Island) in court decisions, where an employee who is also a legal marijuana user challenges an employer's discipline following a positive test result for marijuana; the employer has won.With limited exception, (e.g. AZ, DE, MN, NY & potentially MI) states with medical marijuana laws do not require employers to accommodate an employee’s medical marijuana use.Employers can continue to enforce drug-free workplaces, including the screening of marijuana. Employers are still permitted to prohibit the use, possession, sales, etc. while at work, in a company vehicle, or on company property.Employers are not limited from refusing to hire, discharging, disciplining, or otherwise taking an adverse employment action against an employee that violates their drug-free workplace policy or because they were at work while under the influence of marijuana.Who and When to Test?Except as noted below, there are no mandatory state-specific laws that require an employer to test for marijuana use. There are certain states that limit what employers can screen for (e.g. Oklahoma – screening is limited to Schedule I, II, or III drugs only; other state exceptions) and there are federal limits (such as the Americans with Disabilities Act and the screening of prescription drugs) and state disability discrimination rules that must be considered, but in general non-regulated employers have never been ‘required’ to screen for marijuana use.We could write an entire separate article on the benefits of including marijuana in workplace screening programs. It has been an industry best practice for more than 30 years. Past studies have shown the impacts of marijuana use in the workplace to be very costly specifically related to:AbsenteeismLost productivityChanges in mood & emotionsPoor judgment & coordinationShort-term memory problemsImpaired thinkingLoss of balance and coordinationDecreased concentrationChanges in sensory perceptionImpaired ability to perform complex tasksDecreased alertnessDecreased reaction timePre-Hire vs Post-Hire ScreeningIt is very common for a company to require a drug test as a post-offer condition of employment. This test commonly includes the screening for marijuana use.A popular headline in the news as of late is the number of employers struggling to find workers that can pass a drug screen. Related to that is the general perceived “unfairness” with the dramatic difference in the detection time period for marijuana use. Marijuana and its metabolites are fat-soluble and store in the body longer the other popular drugs of abuse. With the lack of a true method to show that someone is “under the influence” of marijuana, it is nearly impossible to make a distinction between someone being “high” right now or if it was off-duty use (use over a weekend, habitual use, etc.).It is important to note that, just because a prospective employee fails a drug screen for marijuana doesn’t mean the employer must take adverse action or deny employment. (There is a serious question whether this can be done at all in Maine) Employers still have the option to hire the employee, evaluate the nature of the job to be performed and decide whether there is a safety or security concern or if reasonable accommodations would be appropriate or not.A company’s drug-free workplace program also commonly includes the requirements of testing apart of a random screening program or in reasonable suspicion and post-accident situations. The continued testing for marijuana in these situations is likely crucial.So, as an alternate solution to a blanket removal of marijuana testing, a company may choose to assess the value of their pre-hire screening panel compared to that of their post-employment screening panel.By Employee Group or Job FunctionAs another alternative, an employer can make distinctions between employee groups and how or when the company drug testing is imposed.Distinctions between workgroups happen in drug testing all the time. Some companies choose to apply random testing to safety-sensitive workers only (required in some states like Minnesota). Some states limit employers, for example, post-accident testing is not allowed in 5 states and 2 cities; employers in many states (and Boulder, CO) can't conduct observed collections of a sample. In Iowa, the law allows employers to randomly test all workers or just some workers at a site. 31 states have laws that require employers to drug test some workers, but not others. As we’ve mentioned, it is very important to understand the rules that apply to your specific workplace screening program.When is Marijuana Testing Required?Department of Transportation (DOT) Testing: Companies that have employees conducting federally regulated work (truck drivers, bus drivers, pilots, boat captains, rail workers, etc.) MUST follow DOT drug & alcohol testing rules which include the screening of marijuana. Furthermore, the DOT has made it very clear that medical marijuana users are not exempt from federal DOT regulations.State Benefits Programs: There are 15 states that offer benefits to employers who voluntarily comply with state workers’ compensation premium discount programs (Drug-Free Workplace Programs). To earn the benefits the employer must comply with a very complex set of rules including when to test, how to test and for what substances - which includes the required screening of marijuana.Federal Grants: Companies that operate from a state or federal grant likely must continue to screen for marijuana as a condition of the grant.Contractor/Subcontractor Work: It is very common for contractors and subcontractors to require the screening of marijuana, whether by company policy, contract requirement, customer requirement, etc.State Regulations: Several states have some form of law or rule that specifically requires employers to follow Federal (HHS/DOT) rules, which includes screening for marijuana, either in general and in specific circumstances.There are 12 states that prohibit discrimination of an applicant or employee simply because of their status as a medical marijuana patient. (or in the case of Maine, personal use – “off property.”). As one example, the state of New York’s Compassionate Care Act (CCA) created new anti-discrimination protections for medical marijuana users. The CCA namely provides that patients who are certified for medical marijuana use shall not be subject to “disciplinary action by a business” for exercising their rights to use medical marijuana. The CCA further provides that being a certified patient is the equivalent of having a disability for purposes of the New York State Human Rights Law.Suggested Action Steps for Employers· Clearly understand the state-specific drug & alcohol screening laws and court & agency rulings that apply to your company in each state(s) you operate in.· Evaluate the pros and cons of the screening of marijuana for your specific workforce.· Create and/or update and implement a written Drug-Free Workplace Policy that clearly states the company’s stance on prohibited drug & alcohol use and the related consequences that will be imposed. This policy should be reviewed at twice a year, if not more often.· Design and implement sound processes and procedures that complement the language within the company policy. This will remove any guessing or potential mistakes when action needs to be taken in the 'heat of the moment'.· Educated your employees on the dangers and impacts of drug and alcohol use.· Encourage employees to seek help with any drug or alcohol dependency or addiction through your Employee Assistance Program (EAP) benefits.· Train your managers and supervisors on the details of your companies Drug-Free Workplace policy. Help them understand the laws that apply (including the Americans With Disabilities Act (ADA)). Train them on how to recognize the signs of impairment from drug or alcohol use and clearly define the action steps they should take in these instances.· Stay up-to-date with the rules, regulations and court decisions that may impact your program.Resource: Drug Screening Compliance InstituteDisclaimer: I am not a lawyer. The information contained herein is for general informational purposes only.