Last week, the Illinois State Legislature succeeded in its bipartisan effort to legalize the recreational use of marijuana for adults 21 and over, with sales expected to begin next year. Illinois is the second state to legalize recreational marijuana via legislative action, after the Vermont Legislature succeeded in doing so last year. This major development comes on the heels of New York’s new law prohibiting employers from testing their employees for marijuana use starting in 2020.

Courts across the country have taken notice of the recent push of legislative action, refusing to throw out disability discrimination and other claims stemming from adverse actions against employees and applicants who test positive for marijuana.

Generally, courts will uphold terminations where the employee performs traditionally safety-sensitive work and the employer is required to terminate those who test positive for marijuana as a condition of receiving federal funding. Employers who include marijuana in their drug testing programs that do not fall into this category should consider the business justification for doing so. Prohibiting off-duty marijuana use among hourly-paid employees could also have unintended consequences on employee turnover rates and the depth of an employer’s applicant pool.