How Will Recreational Marijuana Impact Illinois?
Loyola University Chicago School of Law, JD 2020
During Governor-elect J.B. Pritzker’s election campaign, he heavily advocated for Illinois to be more accommodating to recreational marijuana usage. In Illinois, medical marijuana has already been legalized, and new bills are being introduced to make it more accessible. If recreational marijuana is legalized, Illinois will join ten states, and the District of Colombia, in its authorization.
Illinois and Medical Marijuana
In August 2018, Governor Bruce Rauner signed Senate Bill 336 into law, and it became known as the Alternative to Opioids Act of 2018 (“the Act”). The Act expands on the Illinois Compassionate Use of Medical Cannabis Pilot Program. The Act currently allows patients who have an opioid prescription to instead attain medical marijuana. It is intended to reduce the use of opioids, opioid overdoses, and opioid-induced deaths.
Patients can have any of the forty enumerated medical conditions to qualify for 2.5 ounces medical marijuana every two weeks. To be eligible for the program, patients must: obtain written consent from a doctor within 90 days of submitting an application to the Illinois Department of Public Health; complete Illinois’ medical cannabis application; pay an application fee; and prove Illinois residency, age, and identity.
Illinois and Recreational Marijuana
With the election of J.B. Pritzker comes a debate as to whether Illinois will take the next step and legalize recreational marijuana. Governor-elect Pritzker ran a campaign that heavily advocated for its legalization, and he even included the predicted $171 million in revenue from cannabis licensing fees in his budget proposal. Pritzker believes that taxes on marijuana will bring in $700 million-$1 billion a year.
Proponents are anxious to get a new law passed, especially in the wake of Michigan becoming the first Midwest state to legalize recreational marijuana. Many believe that the revenue generated from marijuana will assist Illinois in its fiscal issues.
However, despite governor-elect Pritzker’s endorsement of recreational marijuana, he has not been as vocal on his plans to expand medical marijuana access.
Opponents of recreational marijuana do not want to increase access to those without genuine health concerns. Some opponents do not want to even expand medical access beyond the forty categories because they do not want just anyone coming forward claiming pain.
What Will Employers Do?
With the possibility of recreational marijuana being legalized, employers face a new question that was unthinkable not too long ago: how do we deal with employees that are smoking marijuana? Some employers will likely ban marijuana usage by their employees and cite the federal preemption. Nonetheless employers must be careful. Illinois law prevents employers from discriminating against employees for use of legal products outside the workplace. But, this brings up the concern that employers still have a right to drug-free workplace policies under the Drug-Free Workplace Act. Employees will likely have to struggle with how to deal with these two ideas coexisting. While employers will likely want to maintain the status quo surrounding a drug-free workplace, employees may want to use the new law to their advantage.
Even states like Colorado, which has allowed marijuana usage since 2012, acknowledge employers’ rights under federal law. The Colorado Supreme Court held in Coats v. Dish Network that a quadriplegic man who utilized medical marijuana was legally fired by Dish Network after he tested positive on a drug test. The court held that the company had a right to fire Coats since medical marijuana is still illegal under federal law. Other states (including Montana and California) have held for the employer as well.
While the courts are currently ruling on the employers’ side, it will likely not be long before more employees come forward and argue for their ability to use marijuana and continue their employment. It will become more difficult for employers to continue as they were, as more employees argue for their rights under state law.
Why the Big Debate?
While the debate continues, the concern still lingers how to handle marijuana when it is still illegal under federal law. Currently, the federal government regulates drugs (including marijuana) through the Controlled Substances Act (“CSA”). The Supreme Court ruled in Gonzales v. Raich (2005) that the federal government has the constitutional authority to prohibit marijuana for all purposes. Thus, federal law enforcement officials may prosecute medical marijuana patients. They may do so even if the patient grows their own marijuana and even if they reside in a state where medical marijuana use is protected under state law. The Court indicated that Congress and the Food and Drug Administration (“FDA”) should work to resolve this issue.
But, most major federal agencies, except the Drug Enforcement Administration (“DEA”), appear to ignore enforcement of the CSA and allow state marijuana laws to continue. This is most likely because state officers cannot be obligated to enforce federal law. Currently, the federal statute does not require that individual state laws implement comparable marijuana prohibitions, and it is unlikely that this could change. In the future, complying with both state and federal laws will continue to be impossible, and, eventually, one side will have to concede.