The Illinois Cannabis Act: What Employers Need To Know When Reviewing Workplace Policies

August 20, 2019

David Michael

General

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On June 25, 2019, Governor J.B. Pritzker signed into law the Illinois Cannabis Act, which will end cannabis prohibition in Illinois starting Jan. 1, 2020 and will allow adults 21 and older to possess and purchase cannabis from licensed stores. 

The new law will undoubtedly have a direct impact on employers’ current drug testing policies.  So what should employers do?  Below is a list of answers to some frequently asked questions employers will face when reviewing their policies and practices.

Q: Will employers need to amend their current drug use/testing policies?

A: Yes. The new law specifically amends the Illinois Right to Privacy Workplace Act, commonly referred to as the smokers’ rights law, to include cannabis as a “lawful product.”  Accordingly, employers cannot take disciplinary action against an employee for his or her use of cannabis outside the workplace (unless, as discussed more below, such use renders the employee under the influence of cannabis in the workplace while performing duties or while on call).  In other words, employers can no longer decline to hire, discharge or take other adverse action against an applicant or employee merely because they have used cannabis outside the workplace or because they test positive for cannabis use.  Unless an employer is required to maintain a more stringent policy under some other law – for example, to comply with federal regulations or contract requirements – employers must eliminate from their policies any language that prohibits the use of cannabis outside of work.

Q: Can a company implement or maintain a zero-tolerance drug policy?

A: Yes, employers can maintain reasonable zero-tolerance or drug-free workplace policies or employment policies concerning marijuana but only as they relate to being under the influence of or using cannabis (1) in the employer’s workplace, (2) while performing the employee’s job duties or (3) while on call.

Q: Can an employer discipline or terminate an employee for violating the company’s employment or workplace drug policy?

A: Yes, employers are allowed to restrict employees from being under the influence of or using cannabis in the employer’s workplace, while performing the employee’s job duties or while on call.  Accordingly, any employee that violates such a policy can be disciplined or discharged.  The new law specifically protects employers against disciplinary action founded on an employer’s “good faith belief” that an employee is impaired or under the influence of cannabis at work.

Q: When will an employer have a good faith belief that an employee is impaired or under the influence of cannabis at work?

A: The new law states that an employer has a good faith belief when 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 affecting the employee’s speech, physical dexterity, agility, coordination or demeanor, or resulting in irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery;
  • disregards the safety of the employee or others, or is involved in any accident that results in serious damage to equipment or property;
  • disrupts the production or manufacturing process; or
  • exercises carelessness that results in any injury to the employee or others.

In other words, an employer would likely have a good faith belief an employee is impaired if the employee acts “stoned,” is involved in an accident or injury, or disrupts the production or work process. 

Q: Can an employer still drug test?

A: Yes.  The new law provides immunity to an employer if it takes an action against any employee, including testing that employee under a policy, or takes action against an employee for refusing testing.  While the best practice for pre-employment drug testing would be to eliminate THC from the drug panel, employers remain free to test post-accident or based upon reasonable suspicion.

A word of caution on post-accident and reasonable suspicion testing: employers should not automatically use drug test results as conclusive proof that an employee worked while under the influence of marijuana.  While the drug test results will show whether the employee had recently used marijuana, the results may not be able to conclusively establish that the employee was under the influence during work hours or while on call.  However, an employer’s good faith belief of impairment will likely be enhanced if the employer can combine the results of the drug test with the evidence that the employee demonstrated those symptoms explicitly delineated by the new law as evidence of marijuana impairment. 

Another final word of caution when an employer is considering discipline for workplace marijuana impairment: the new law requires an employer to afford the employee “a reasonable opportunity to contest the basis of the determination.”  This means an employer should not discipline or terminate an employee for being impaired or under the influence of marijuana without first meeting with the employee and giving him or her an opportunity to contest the conclusion he or she was impaired or under the influence.

Q: Do employers have to accommodate an employee’s off-duty use of cannabis?

A: Although the Cannabis Act does not specifically require that employers make accommodations for the use of marijuana, Illinois previously enacted the Compassionate Use of Medical Cannabis Pilot Program Act and the Opioid Alternative Pilot Program, both of which allow patients diagnosed with specified medical conditions (that have recently been expanded) to possess and use medical marijuana.  In addition, recent rulings in federal and state courts outside Illinois have found that the use of medical marijuana may be a reasonable accommodation for an employee when the use is outside of working hours and does not adversely affect safety or job performance.

Q: How does the new law affect employers with federal contracts or grants?

A: An employer may continue any testing program that federal, state or local laws or ordinances require.  For instance, companies that must comply with U.S. Department of Transportation regulations to maintain a drug testing program – airlines, trucking companies, rail companies, etc. – should maintain those policies as they pertain to cannabis.  Similarly, organizations may keep their existing policies in place if changing those policies would jeopardize federal contracts or federal grants.  These federally regulated employers should update their policies to note that they will continue to test for cannabis despite its legal status in Illinois.

Q: Can a company still test for marijuana in a pre-employment drug screen?

A: The Cannabis Act does not specifically prohibit drug tests for marijuana.  However, because the new law amends the Illinois Right to Privacy in the Workplace Act to prohibit employers from taking adverse hiring or disciplinary actions against employees for using marijuana outside work, a pre-employment drug test for marijuana would serve no purpose (unless required by some other applicable law).  Many employers have been considering dropping testing for THC (the active ingredient in marijuana) from their pre-employment drug screen panels.  If a company is not otherwise required by law to so test, now would be the time to drop it off the panel.

For more information on the new law or to discuss its implications for employers further, please contact one of Gould & Ratner’s HR and employment lawyers.

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Post by David Michael

As chair of Gould & Ratner’s Litigation Practice, David Michael leads a diverse group of trial attorneys focusing in all areas of complex commercial disputes for public and private companies, as well as business-related disputes for closely held and family businesses.

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