By: David Standa, Partner
For over two years, we have been critical of the parade of errors that Illinois lawmakers, the attorney general’s office, and especially the governor have made to hamper and nearly derail the adult-use cannabis rollout that was supposed to serve as the “gold standard” for how to establish an adult-use cannabis industry at the state level. But credit where credit is due; last week the Illinois House of Representatives approved a bill that will help the industry move forward. The bill, which still needs approval from the Senate, would prohibit – with some exceptions – most employers from firing workers or discriminating against job applicants based on a positive marijuana test. The measure would protect workers who consume lawful cannabis products off of work premises during nonworking hours and when they are not on call. Employees that work for contractors of the federal Department of Transportation would not be covered, nor would the bill add any additional protections under the Illinois’s workers’ compensation law. There are additional carve outs for certain categories of employees, for example jobs where workers carry a weapon, operate heavy machinery or aircraft, perform emergency services or other safety-sensitive tasks. Companies could also still fire employees for being impaired by cannabis in the workplace. All practical exceptions that even the staunchest of cannabis advocates can appreciate.
That’s not to say the bill is perfect. For example, as currently written, the bill would apparently only protect workers who test positive for relatively low amounts of cannabis. It provides that employers can fire workers whose test results meet or exceed the legal limits set forth in the state’s vehicle code , but that law considers drivers impaired if they test positive for THC at a concentration of greater than 5 nanograms per milliliter of blood—or 10 ng/mL of other bodily fluids, such as saliva or urine—within two hours of driving. That limit is seen as too low by some cannabis advocates, who astutely point out that THC levels can remain high in consumers’ bloodstreams for long after any impairment has worn off. If this same limit is used for workers in general it could put employees’ jobs at risk even if they only consume cannabis off-duty on their personal time, for instance smoking a joint on a Friday night and then showing up to work on Monday morning long after any impairment would be over.
The concern over the testing limit is a valid one, but like everything relating to cannabis politics, there is a certain give-and-take that is required to push cannabis further and further toward main stream acceptance. This bill, even with a nominal testing limit, is certainly a step in the right direction and it should come as no surprise that it is Rep. Bob Morgan (D) who sponsored the bill. Rep. Morgan has been instrumental in advancing the cannabis industry in Illinois and he is one of the few lawmakers that “gets it.” “If we’re going to legalize the substance, you should talk about individual liberties and what people want to do on their weekends,” Rep. Morgan said before the House vote. “We should allow people to make good choices and not be discriminated against in the workplace because of those choices as long as it’s not affecting the workplace.” Thus, even if this version of the bill does not get the requisite votes in the Senate, we expect Rep. Morgan will address any concerns that come up and get some form of this bill passed this year.
Be sure to follow our blog for more information on developments impacting the cannabis industry. If you have any questions or would like to contact the authors, please email David Standa (david.standa@gmlaw.com ).
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