If nothing else, Illinois Governor J.B. Pritzker has been busy keeping employers on their toes. Last week, Governor Pritzker signed into law the Cannabis Regulation and Tax Act. Economic and societal considerations aside, Illinois employers would be wise to revisit their current drug testing program to ensure compliance with parts of the Act that may conflict with past practice widely considered second nature by many businesses.

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?

Yes, it’s not all bad. The Act specifically provides that:

(1) Nothing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on-call provided that the policy is applied in a nondiscriminatory manner. (“On-call” is defined to mean when the employee is scheduled with at least 24 hours’ notice by the employer to be on standby or otherwise responsible for performing work).

(2) Nothing in this Act shall require an employer to permit an employee to be under the influence of or use cannabis in the employer’s workplace or while performing the employee’s job duties or while on-call.

(3) Nothing in this Act shall limit or prevent an employer from disciplining an employee or terminating employment of an employee for violating an employer’s employment policies or workplace drug policy.

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 have to comply with this somewhat fuzzy provision:

An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or other, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others. If an employer elects to discipline any employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

Got all that? Once you are done taking it in, be aware that the Act does not define “reasonable opportunity,” making it unclear exactly what employers must offer employees when there is reasonable suspicion of 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 clearly written policies regarding pre-employment, random, reasonable suspicion or post-accident testing? Odds are you do. What next? Given that marijuana use may be detected for up to 60-90 days, a positive test doesn’t prove that an employee was impaired while performing his or her work duties. And as mentioned above, the Illinois Right to Privacy Act likely prohibits employers from taking adverse actions against an employee who tests positive unless it is clear they were under the influence at work or while on-call. Philosophical decisions should be made. For example, do you want to test for marijuana use during pre-employment drug tests?

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