Legal updates

llinois Recreational Marijuana Bill Awaiting Gov. Pritzker’s Signature: Workplace Considerations

June 4, 2019

On May 31, 2019, the Illinois Senate passed by a 66-47-2 margin the “Cannabis Regulation and Tax Act” (HB1438), which now awaits Governor J.B. Pritzker’s signature. In conjunction with the Illinois Association of Chiefs of Police, Clark Baird Smith LLP was involved in proposing revisions to the bill that should preserve an employer’s right to protect employee safety and to regulate the workplace by maintaining zero tolerance or drug free workplace policies. 

The key employment provisions of HB 1438 are found in Section 10-50, including affirmations of:
  • An employer’s ability to adopt reasonable zero tolerance or drug free workplace policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call;
  • An employer’s ability to prohibit an employee from being under the influence of cannabis at work or while on call; and
  • An employer’s ability to discipline or terminate an employee for violating an employer's employment policies or workplace drug policy.
Further, HB 1438 declares that the Act will not create or imply a cause of action against an employer for (among other things): 
  • Requiring an applicant or employee to undergo reasonable drug or alcohol testing under a workplace policy, including based upon a good faith belief of:
    • Suspicion of use or possession of cannabis in the workplace;
    • Suspicion of impairment or being under the influence at the workplace, while performing job duties, or while on call; or
    • Injury, loss or liability to a third party if the employer is unaware that the employee was under the influence of cannabis.
Importantly, HB 1438 recognizes employers’ obligations to comply with the United States Department of Transportation drug testing regulations under 49 C.F.R. Part 40, and marijuana remains a Schedule I drug under federal law that is “unacceptable for any safety sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations.” In addition, HB 1438 recognizes employers’ obligations to comply with other legal requirements, including to provide a safe work environment and to meet requirements for federal or state contracts or funding which often require a drug-free workplace. As passed, the bill also would preserve an employer’s rights under the Compassionate Use of Medical Cannabis Pilot Program Act or the Opioid Alternative Pilot Program, which likewise permits enforcement of zero tolerance and drug testing policies.  

Finally, HB 1438 makes clear that these prohibitions must be enforced and applied in a non-discriminatory manner. In this regard, it will be important for all employers to enact, enhance, and/or review current polices and enforcement of those policies to preserve the right to maintain a drug free workplace and drug free performance of duties. Please contact a Clark Baird Smith LLP attorney for more information or if you are interested in bolstering your policy and practices.


The CBS LLP Legal Update is prepared for general information purposes only. Summaries of recent court opinions and other legal developments are not necessarily inclusive of all the recent legal authority of which you should be aware when making your legal decisions. Thus, while every effort has been made to ensure accuracy, you should not act on the information contained herein without seeking more specific legal advice on the application and interpretation of these developments to any particular situation.