NewsEmployer Considerations After Cook County Voters Cast Ballots in Support of Recreational Cannabis

 
With the votes by Cook County voters supporting a referendum that asked if the recreational use of cannabis should be legalized, employers need to consider how to prepare for the passage of a law allowing for such use.  On March 20, 2018, during the state primary voting cycle, Cook County residents voted on a non-binding referendum addressing the legalization of recreational cannabis in Illinois.  Sixty-eight percent of ballots included a vote in favor of legalizing recreational cannabis cultivation, sale, and use for those 21 and older.
Although certain groups have come out against the legalization of recreational marijuana and the wording within the referendum, the results are consistent with other efforts within Illinois to pass a law legalizing recreational cannabis. Illinois General Assembly Bill SB0753 has been passing through committees since 2015, seeking to legalize recreational cannabis for adults 21 years and older.
The conflicting legal positions of federal and state governments present a number of challenges for employers, including creating and enforcing workplace policies that will effectively address employee marijuana use and prevent potential claims of discrimination and wrongful termination.
Currently, Illinois permits the possession and use of medical marijuana for individuals who suffer from a “debilitating medical condition.”  Illinois also provides job protections and prohibits discrimination for individuals using medical marijuana. However, there is no employee protection for marijuana possession or use in the workplace, nor is there protection for being under the influence of marijuana at work, particularly in contexts when impairment would be a safety issue.
Employers should be aware of the current laws within Illinois in light of the fact that marijuana use is still illegal under federal law.  Recent case law within other states shows that employees are bringing disability discrimination claims under the Americans with Disabilities Act (ADA), alleging that employers discriminated against them because of their disability (relating to the use of medical marijuana).  This is somewhat of a new frontier within ADA litigation and results vary from state to state.
Employers should review and revise (if necessary) current ADA disability policies within the Employee Handbook, train human resources personnel on the proper workplace accommodation process, and clearly define safety-sensitive positions. As legislation moves forward in Illinois, employers should closely follow new developments within the law and employment policy. Tristan & Cervantes has provided guidance to employers in implementing Handbook policies and advising clients in recent trends within the law.  If you have questions regarding your organization’s current policies, please contact our office at info@tristanlegal.com or call us at 312.345.9200.