The introduction of recreational marijuana has brought major changes to aspects of everyday Illinoian life. On January 1, 2020, The Cannabis Regulation and Tax Act will take effect, legalizing the use, possession, and cultivation of marijuana by adults, aged 21 years and older, for recreational purposes. The effect this will have on employment and criminal law in Illinois has left many scratching their heads.
The act, signed into law on June 25, 2019 by Governor Pritzker after being approved by both houses of the Illinois General Assembly, led Illinois to become the first state to legalize cannabis for recreational sale and use through state legislature rather than ballot initiative. The legislature has had 180 days to develop a framework for marijuana, and with two weeks until enactment, the law is still quite inadequate.
The Cannabis Act permits employers to maintain “reasonable zero tolerance” or drug free workplaces. The act also allows employers to prohibit the use of marijuana in the workplace and on the job. However, Illinois employers must also continue to comply with the Illinois Right to Privacy in the Workplace Act, which prohibits discrimination in employment because of an individuals use of a lawful product off the premises of the employer during non-working hours. “Lawful products” , as of January 1, 2020, will include cannabis. Because of the nature of cannabis, there is no way to calculate when cannabis was last ingested, it can stay in a person’s system for days to weeks. An employer that drug tests his employees may find themselves facing a discrimination liability if they choose to terminate an employee based off of a failed drug test. The “reasonable zero tolerance” the act permits is in fact limited by this.
In addition, every Illinois police department is left without a viable means to enforce driving under the influence laws pertaining to cannabis. Illinois has a per se driving law enacted for the presence of THC in the blood above 5 nanograms. While blood tests sometimes can be used to detect impairment, using the 5ng/ml is not a reliable benchmark; someone who smokes cannabis might not be impaired at all at 5 ng/ml, but an occasional or new user might be seriously impaired even at a lower level. Unlike alcohol, no road side test exist for measuring cannabis impairment. Consequently, on the trip back to the station for the blood test, your levels will not be the same as when you were driving. It’s also important to note that blood, saliva, and urine tests can detect cannabis in a driver that hasn’t smoked in weeks. The Congressional Research Service explained that researchers and the National Highway Traffic Safety Administration have observed that using a measure of THC as evidence of a driver’s impairment is not supported by any scientific evidence to date.
While the legalization of cannabis is a source of celebration for some, there are still many aspects of the law that will lead to adverse consequences that infringe on the rights of Illinoian citizens and lack scientific accuracy.