Wednesday, July 17th, 2019

What Every Municipality Really Needs to Know (and Do) About Recreational Cannabis

If you feel inundated with the flurry of updates about the legalization of recreational cannabis in Illinois, we hope this provides you a practical summary of what you really need to know and what actions can be taken:

  1. The law is not effective until 2020, so do not panic. There are a few things to contemplate before then, but the sky will not fall if it takes a couple of weeks to understand and identify what actions your municipality wishes to take.
  2. Use/Possession: A municipality may not outlaw possession or use of legally obtained cannabis by persons 21 or greater if the amount is within the prescribed limits allowed.
    • Action Item: Update your cannabis ordinance. Almost every municipality has a general prohibition on use and possession of cannabis and cannabis related devices. You will probably want to keep the ordinance because you will potentially still enforce it against persons under 21 and anyone who does not meet the statutory requirements, but you should amend the ordinance to make sure there is an exception for legal use.
    • Possible Action Item: Consider mirroring your existing ordinance on public possession or consumption of alcohol in certain public areas, such as parks, to similarly prohibit possession or consumption of cannabis.
  3. Zoning: A municipality may opt out of allowing production centers and/or dispensaries if it chooses, or a municipality may otherwise limit or restrict locations through zoning—all of this subject to the law governing ordinances and zoning requirements.
    • Possible Action Item: If your municipality chooses to not allow cannabis facilities, then it should pass an ordinance before the end of the year stating that.
    • Possible Action Item: If your municipality wishes to restrict where a dispensary is located, it should consider making dispensaries a special use and indicate in what zoning areas they would be allowed.
    • Possible Action Item: If the decision is to allow cannabis facilities, consider passing a Retailer Occupation Tax (sales tax) of up to 3% for dispensary sales.
  4. Expungement: Basically every municipality has to expunge all minor cannabis offenses from the past. Nothing has to be done before 2021 so this should not be the top priority, and uniform procedures will likely emerge in the next year to facilitate the process.
  5. Employee Policies: A municipality can:
    • Prohibit the use, possession, and being under the influence of cannabis at work or while working.
    • Prohibit the use while “on call” so long as the employee is scheduled with at least 24 hours’ notice to be on standby.
    • Maintain a zero tolerance policy and discipline or discharge employees if the municipality has a “good faith” basis to believe the employee is under the influence while at work, on-call or while performing job duties.
    • Administer drug tests so long as there is a “good faith” belief that the employee used or was under the influence of cannabis while working, on call, or performing job duties.  However, the employee must be allowed to contest the basis for the employer’s determination that the employee was under the influence. 

Please note that just like with alcohol which is a legal substance, you cannot prohibit an employee’s use of cannabis while off-duty (unless they are on call, as noted above).

Exceptions: There are some exceptions to this, based on whether federal law may regulate certain employees. An employee subject to federal law prohibiting use or possession of cannabis is potentially subject to discipline for off-duty use, including:

  • Employees with Commercial Driver’s License (CDL) requirements if the CDL is not issued, suspended or revoked for a cannabis-related reason.
    • Employees who work on public projects that are federally funded are typically subject to federal drug control laws, which include cannabis as a prohibited drug.
    • Employees subject to Collective Bargaining Agreements (CBAs) may be contractually bound to not use cannabis.
  • Action Item: Review CBAs, job descriptions, and federal grant requirements to identify which employees may be subject to cannabis restrictions and review with legal counsel.
  • Action Item: Review drug testing policies to ensure that trace or residual amounts of THC are not a basis to disqualify an applicant or employee from employment unless the position is one that is subject to applicable federal requirements.
  • Possible Action Item: Consider mirroring your policy on cannabis possession at the work place with your policy on alcohol possession at the work place.

Again, this is intended to be a basic summary of what every municipality should know and what next steps should be considered. Some items, such as employee discipline, zoning amendments, and criminal record expungement are nuanced legal issues that should be reviewed with your attorney before taking conclusive action.

Brad Stewart

Author: Brad Stewart