Marijuana is Now Legal in My State, but Is It a ‘Lawful Product?’

08 July 2019 Labor & Employment Law Perspectives Blog
Authors: Patrick J. McMahon

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. Already 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, and this article addresses 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. 

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 employees 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.  Foley’s Labor & Employment Group, with the support of Foley’s Cannabis Law Team, is ready to help employers navigate this ever-evolving landscape.  

 
This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services

Insights