Illinois Cannabis Legislation Impact on the Workplace
By Patrick Connelly & Joselyn Varghese
While the Cannabis Regulation and Tax Act awaits Governor J.B. Pritzker’s signature, many employers have begun to question the implications the new legislation will have on workplace regulation.
In 2014, Illinois legalized the use of medical marijuana. At that point, employers began to implement new policies to accommodate those workers who used cannabis for medicinal purposes. However, with the new legislation, more individuals will have access to cannabis and cannabis infused products for recreational use, leaving a need for employers to reevaluate their current workplace policies.
The Cannabis Regulation and Tax Act (Act) allows employers to maintain a drug free workplace. The Act does not prohibit employers from adopting reasonable zero tolerance or drug free workplace polices and adopting policies regarding drug testing, smoking, consumption, storage, or use. The only caveat to this rule is that the policies must be implemented in a nondiscriminatory manner, which is not defined in the Act.
Employers are allowed to discipline or even terminate employees that violate employment drug policies. The action taken must be made on, “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[.]” The Act goes so far as to specify certain symptoms that may justify a good faith belief. Those include impaired speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery. However, the employer is required to allow the employee a reasonable opportunity to contest the basis of the employer’s determination.
Since the legalization of medical marijuana in Illinois, some employers have decided against drug testing while others continued to ban use outright. Employers in states like Colorado and California, which legalized recreational marijuana years ago, still drug test for cannabis use. To that end, cannabis is still considered a Schedule I drug per federal statute meaning employers have the right to regulate the workplace. This will require employers to address the new legislation head on. Any employer that contracts with the federal government should not allow employees to use cannabis because federal contractors must comply with the Drug-Free Workplace Act of 1988.
Depending on the policy that any employer implements, it will either draw employees away or attract employees to their industry. What employers must be cautious of is how to handle drug testing results. Cannabis remains in an individual’s system for up to 90 days, depending on the type of test conducted. It is very difficult for these tests to assess current marijuana impairment. This means that if an employer chooses to implement a drug free workplace and require drug tests at the outset of employment or through random sampling, those results may be inconclusive to determine impairment. Given the employee’s right to challenge the employer’s determination of impairment, basing discipline solely on drug test results may prove to be disadvantageous to having the determination upheld.
Only time will tell how the Act will change the workplace environment, however, employers that do not address the Act may face challenges down the road. Employers now have less than 6-months to ensure that their policies are in compliance with the Act. Many employers in states that have already legalized cannabis have created policies that mirror alcohol use by employees. This gives Illinois employers a guidepost on how to handle these new employment policies. What is clear is that employers may ban the use of cannabis in the workplace and employers have the discretion to discipline or discharge any employee they believe, in good faith, is impaired while performing job duties. However, employers must be cognizant to ensure they are not disciplining employees who use marijuana recreationally where such use has no impact on their conduct at work.
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