When the Smoke Clears: The Impact of Illinois’ Legalization of Recreational Marijuana on Postsecondary Institutions and Employers

On June 26, 2019, Illinois joined ten other states and the District of Columbia in legalizing recreational marijuana. The Cannabis Regulation and Tax Act (“Act”), which takes effect on January 1, 2020, allows Illinois residents who are 21 and older to legally buy, possess, transport, and use cannabis. Residents may possess 30 grams of flower, 5 grams of concentrates, and edibles with no more than 500 mg of THC. Visitors to Illinois may possess half of these amounts. Smoking will not be permitted in any public place or in cars.  

The legislation, which came upon the heels of Michigan’s legalization in 2018, is unique to bills passed in other states in that it was not introduced by referendum but by the state legislature, and sets aside a $12 million Cannabis Business Development Fund to provide financial assistance and license application benefits to minority entrepreneurs, who lawmakers recognized were directly and adversely impacted by enforcement of cannabis-related laws in the past. A number of states—in particular Connecticut, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, and Vermont—could see passage of similar legislation in 2019 or 2020.

With the advent of Illinois’ legislation, postsecondary institutions (and employers more generally) will want to keep in mind the following:

• CONTROLLED SUBSTANCE ACT: All state recreational marijuana laws are preempted by the Controlled Substances Act (21 U.S.C. § 812(b)(1)), which federally classifies marijuana as a Schedule I drug. Under the Fair Labor Standards Act an employer must maintain a working environment that is consistent with both state and federal laws.
• DRUG-FREE SCHOOLS AND COMMUNITIES ACT AMENDMENTS OF 1989 and DRUG-FREE WORKPLACE ACT OF 1988: Postsecondary institutions must commit to reducing and preventing drug and alcohol related problems within their campus communities. Employers who contract with, or receive grants from, federal agencies must continue to certify that they will meet certain requirements for providing a drug-free workplace and must continue to certify that their conduct of grant activity will be drug-free.
• TITLE IV FUNDING: The Department of Education has interpreted the Drug-Free Workplace Act to include recipients of Title IV funding. Therefore, to receive Title IV funding, all higher education institutions are barred from allowing any persons (including staff, faculty, or students) to use, possess, or cultivate marijuana on its property.
• ADA: Section 12114(a) of the Americans with Disabilities Act (“ADA”) states that “a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs.” “Illegal use of drugs” is defined as those deemed unlawful under the Controlled Substance Act, with the exception of drugs taken “under supervision by a licensed health care professional.” 42 U.S.C. § 12111(6)(A). Courts in Oregon, Washington, Montana, and California have found that the ADA does not require employers to accommodate medical marijuana use by employees, while a court in Massachusetts recently found that the state’s disability law gives employees the right to a reasonable accommodation for medical marijuana use. While more courts wrestle with this question, one thing is clear—employers are not required to permit employees to use marijuana during work hours or on work premises.
• STUDENT USE: Postsecondary institutions can bar students from using marijuana on- and off-campus so long as student conduct codes and policies are written appropriately.
• DISCIPLINARY ACTIONS: Postsecondary institutions (and employers more generally) can take disciplinary actions against an employee for violation of a workplace drug policy or for working while under the influence of marijuana. Employers continue to have the ability to refuse to hire an employee because the employee failed a workplace required drug test.

While Illinois’ legislation introduces many changes to the treatment of marijuana use and possession for residents, postsecondary institutions (and employers generally) do not need to undertake changes in their policies and procedures since those who are in compliance prior to the Act’s implementation will continue to be in compliance. However, postsecondary institutions and employers may want to ensure that their policies make clear what their stance is on marijuana use under the new laws.

Should you have any questions or concerns about the implications of Illinois’ legalization of recreational marijuana or related legislation in other states, please do not hesitate to contact us by email or at 312-946-1800.