Marijuana is now legal in my state, but is it a ‘lawful product?’

The trend of states legalizing both medical and recreational marijuana use continues to gain momentum. Unfortunately for employers, this also means having to wade through an ever-growing patchwork of marijuana laws across the country.

This year, both Michigan and Illinois have legalized recreational marijuana, and Nevada and New York City have added protections for pre-employment screening of marijuana use, even for recreational users. Foley has been keeping a close eye on all of these laws, but there is one discrete but important distinction for recreationally legalized marijuana.

Illinois is the most recent state to have legalized recreational marijuana. The Illinois Cannabis Regulation and Tax Act (Cannabis Act) specifically preserves employers’ rights to maintain reasonable zero-tolerance or drug-free policies, provided that those policies are applied in a nondiscriminatory manner. In the same vein, the Cannabis Act preserves an employer’s right to terminate an employee for violating said policies, as long as the employee is given an opportunity to contest any allegations.

Bloomberg.Marijuana
A grower inspects a cannabis bud at a craft grow operation outside of Nelson, British Columbia, Canada, on Thursday, Nov. 8, 2018. In the first major industrialized country to legalize recreational pot, this remote region illustrates the opportunities and challenges facing cannabis artisans: Can they develop their industry without selling out to the Toronto "suits" who increasingly dominate the trade? Photographer: Ben Nelms/Bloomberg

However, employers should note that the Cannabis Act makes one notable addition to another Illinois statute, the Illinois Right to Privacy in the Workplace Act (RPWA). The RPWA precludes employers from discriminating or taking adverse employment actions against workers based on their use of lawful products outside of working hours and off premises, so long as such use does not interfere with an employee’s ability to perform his or her job duties.

The Cannabis Act adds cannabis to RPWA’s list of lawful products whose use cannot form the grounds for workplace discrimination or discipline. So, how does this square with the Cannabis Act’s provisions permitting zero-tolerance drug policies and the ability to terminate employees for violations of the same?

Looking to other states’ application of lawful activities can provide insight into how Illinois (and potentially other states with relevant statutes) may resolve this inherent conflict. Colorado was one of the first states to adopt legalized recreational marijuana in 2012. Therefore, that state has more robust case law surrounding recreational cannabis, and its courts have dealt with questions similar to Illinois’ lawful product conundrum.

In one particularly instructive 2015 Colorado case, Coats v. Dish Network, LLC, a terminated employee argued that he was improperly discriminated against for his lawful use of marijuana under the state’s medical marijuana program. The Colorado Supreme Court, however, held that the employer was within its rights to terminate the employee. The court specifically pointed to its equivalent of Illinois’ RPWA and noted that marijuana use was not “lawful activity” under Colorado law.

Contrast the Colorado result with Illinois’ Cannabis Act, where marijuana explicitly is a lawful product under Illinois state law. Might that mean the result would differ and the employer would be found to have impermissibly discriminated against the employee had this situation arisen in Illinois? It would seem far more likely.

Still, case law surrounding the Cannabis Act has not even begun to develop, so nothing is certain. These types of interstate, and even intrastate, inconsistencies are precisely why employers need to keep a close eye on state laws in states where they have operations. More generally, employers would be wise to consider their reasons for having zero-tolerance policies in the first place and whether those policies can be tailored to avoid this problem altogether.

This article originally appeared on the Foley & Lardner website. The information in this legal alert is for educational purposes only and should not be taken as specific legal advice.

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