Recreational Marijuana Use Legalized in Illinois. What’s an Employer to do?

Illinois Governor J.B. Pritzker has kept employers on their toes. Last week, he signed the Illinois Cannabis Law, officially known as the Cannabis Regulation and Tax Act. Economic and societal considerations aside, Illinois employers should revisit their current drug testing programs. They must ensure compliance with parts of the Illinois Cannabis Law that may conflict with past practices, which many businesses previously considered second nature.

What Does the Act Allow?

Anyone over the age of 21 is allowed to possess, use or buy marijuana for recreational purposes beginning on January 1, 2020.

Impact of the Act on Other Illinois Laws

Marijuana will be considered a “lawful product” under the Illinois Right to Privacy Act, which bars discrimination against employees and applicants for using lawful products off-duty and off of the employer’s premises.

Isn’t Marijuana Illegal Under Federal Law?

Yes it is. Marijuana is classified as a Schedule I drug by the federal Controlled Substances Act. While the federal government takes the position that marijuana has a high potential for abuse and lacks currently acceptable medical use, and is not safe for use even under medical supervision, it has allowed Illinois and other states to pass laws legalizing recreational and medical marijuana laws without opposition to this point.

Is There Anything Good in the Act for Employers?

It’s not all bad news. The Act clearly allows employers to enforce workplace policies regarding cannabis.

(1) Employers can implement zero-tolerance or drug-free workplace policies. These policies may cover drug testing, smoking, consumption, storage, or cannabis use at work or while on-call. However, employers must apply these policies fairly and without discrimination. “On-call” means an employee has received at least 24 hours’ notice to remain available or responsible for work.

(2) Employers do not have to allow employees to use cannabis or be under its influence at work. This restriction also applies while employees perform their job duties or remain on-call.

(3) Employers have the right to discipline or fire employees who violate workplace drug policies.

An Employee Appears to be Impaired at Work. What Can You do Without Getting in Trouble?

You have options. You may discipline any employee who appears impaired at work, but you must follow this somewhat unclear rule.

An employer may determine that an employee is impaired or under the influence of cannabis if they have a good faith belief based on specific, observable symptoms. These symptoms must appear while the employee is working and must decrease or lessen their ability to perform job duties. Signs of impairment may include slurred speech, reduced physical dexterity, lack of agility, poor coordination, or unusual behavior. Other signs include negligence in operating equipment, disregard for safety, involvement in serious accidents, disruption of production, or careless actions that cause injury.

If an employer decides to discipline an employee for cannabis impairment, they must give the employee a chance to challenge the decision.

Got all that? Once you process this information, remember that the Act does not define “reasonable opportunity.” This lack of clarity makes it difficult for employers to determine exactly what they must provide when they suspect impairment at work.

You are Regulated by the U.S. DOT’s Drug and Alcohol Testing Requirements and are a Federal or State Contractor

For businesses with drivers who must be drug tested under Department of Transportation guidelines or bid and work on federal or state contracts, the Act doesn’t interfere with the prohibition on drug use applicable to certain contractors.

What Should You Do About Current Drug Testing Program?

Do you have clear policies for pre-employment, random, reasonable suspicion, or post-accident testing? You probably do.

What comes next? Marijuana use can be detected for up to 60–90 days. However, a positive test does not prove that an employee was impaired while working.

The Illinois Right to Privacy Act likely prevents employers from taking action against an employee who tests positive. Employers can only act if there is clear evidence that the employee was under the influence at work or while on-call.

You must make philosophical decisions. For example, do you want to test for marijuana use during pre-employment drug screenings?

As always, I’m here to help. Please contact Brian to discuss and review your current policies.