On May 31, 2019, the Illinois House of Representatives passed House Bill 1438, the “Cannabis Regulation and Tax Act.” Governor J.B. Pritzker, who campaigned on recreational marijuana legalization, has vowed to sign the bill into law and, if he follows through, the Act will go into effect on January 1, 2020. Before indulging, Illinois workers should be aware that the Act does not prohibit drug testing or prevent their employers from discharging them even for off-premises cannabis use during non-working hours.

Illinois’ Historical Restrictions on Disciplining Employees for Lawful Activities

Going back to the 1980s, Illinois has restricted employers from discriminating against employees for engaging in lawful off-premises, nonworking activities. Specifically, the Right to Privacy in the Workplace Act provides that an employer may not treat an employee unfavorably “because the individual uses lawful products off the premises of the employer during nonworking hours.” 820 ILCS 55/5(a). The Personnel Records Review Act, meanwhile, complements the Right to Privacy in the Workplace Act by prohibiting employers from the unauthorized gathering or keeping records of its employees’ “nonemployment activities.” 820 ILCS 40/9.

The New Cannabis Legalization Act Amends the Right to Privacy in the Workplace Act

The Cannabis Regulation and Tax Act, at Section 900-50, specifically amends the Right to Privacy in the Workplace Act to remove its restrictions on employers as they relate to an employee’s lawful cannabis use. Going further, Section 10-50 (“Employment”) of the Cannabis Regulation and Tax Act makes clear employers may still, amongst other things: adopt reasonable, non-discriminatory zero tolerance and drug free workplace policies, drug testing policies; prevent intoxicated employees from working; and discipline or discharge employees for violating their employers’ drug policies.

The Personnel Record Review Act May Still Offer Very Limited Protections for Lawful Cannabis-Using Workers

The Cannabis Regulation and Tax Act did not, however, amend the Personnel Record Review Act. So, while an employer will be able freely discharge employees for off-premises, lawful use of cannabis during nonworking hours, employers still may be limited in how they could find out that an employee is engaging in such cannabis use since the prohibition for keeping and gathering information about “an employee’s … nonemployment activities” remains on the books.

Especially since employers are expressly permitted to maintain reasonable, non-discriminatory drug testing policies, the Personnel Record Review Act offers cannabis-using workers, at most, extremely limited protections. Nonetheless, employers should still be mindful of the Personnel Records Review Act’s restrictions before attempting to pry into its employees’ lawful off-premises cannabis use during nonworking hours.