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Illinois Legalizes Recreational Marijuana

By now, many of you have perused newspaper reports on the internet, and have been made aware that effective January 1, 2020, the State of Illinois has legalized recreational marijuana. It is interesting to note that the State of Illinois will be the first state to legalize the recreational use of cannabis by legislative action rather than public referendum. In point of fact, the State of Illinois will be the eleventh (11th) state to legalize recreational marijuana.

"Recreational Use of Marijuana" will allow the sale, possession, and use of cannabis by any person 21 years of age or older for recreational purposes and certainly provide for a rapid expansion of cannabis retailers. It should be noted that the final bill signed by Governor Pritzker on June 24, 2019 removed the right of unlicensed private citizens to grow cannabis for their personal use. In fact, it established the only persons who are registered as "qualifying patients under the State of Illinois' existing medical cannabis program" may participate in home grow. The following activities will continue to be prohibited under the Cannabis Regulation and Tax Act:

  • Consumption of cannabis in any public place with the term "public place" defined as "any place a person could reasonably be expected to be observed by others" but excludes private residences;
  • Consumption of cannabis on school grounds;
  • Consumption of cannabis in "close proximity" to persons under 21;
  • Smoking cannabis in any location is prohibited by the Smoke-Free Illinois Act which includes hospitals, restaurants, retail stores, offices, commercial establishments, etc.;
  • Sale of cannabis to any minor under the age of 21;
  • Home delivery of cannabis to a consumer by any business;
  • Possession of cannabis in a motor vehicle unless the cannabis is in a "sealed, odor-proof, child-resistant, tamper-proof container and reasonably inaccessible";
  • Driving under the influence of cannabis

With regard to employment related issues, the new law maintains important protections for employers previously established under the Medical Cannabis Act (Compassionate Use of Medical Cannabis Program Act of 2013) and includes the ability to enforce reasonable workplace policies such as "drug-free" and "zero tolerance policies" and to impose discipline up to and including termination if an employee is impaired or under the influence of cannabis while in the workplace. The Act's employment provisions differ from the Medical Cannabis Act in two (2) main respects.

In the first instance, the new act precludes employees from being impaired under the influence of cannabis not only in the workplace but also if they are "on call". Employees are considered to be on call if they are scheduled to be on standby duty with at least 24 hours' notice or otherwise responsible for performing work related tasks. Secondly, the Act amends the State of Illinois' Right to Privacy in the Workplace Act which protects employees from adverse actions related to their use of "lawful products" outside of working hours. To clarify, recreational cannabis is considered a "lawful product" under the Cannabis Regulation and Tax Act. How this will be interpreted and affect employers' "zero tolerance" and "drug-free" policies will be subject to court review and interpretation.

Obviously, with the legalization of recreational marijuana as of January 1, 2020, the employment landscape in the State of Illinois will be subject to change and modification.

Questions? Contact attorney Walter Liszka in our Chicago office at (312) 629-9301 or by e-mail at [email protected].

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