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Nicole D. Meyer, Esq.
Davis & Campbell, L.L.C.
On June 25, 2019, Governor J.B. Pritzker signed legislation making Illinois the 11th state to approve marijuana for recreational use for individuals age 21 and older. Governor Pritzker argues that the Cannabis Regulation and Tax Act (“CRTA”), set to go into effect on January 1, 2020, will have a positive impact on Illinois’ residents and businesses. While the true impact of this legislation is TBD, one thing is for certain: employers need guidance concerning the effects of this bill on the workplace, including how to remain compliant with the law when drafting workplace drug policies and implementing disciplinary measures for violations of those policies.
The haziness of the law leads to questions that may not have clear-cut answers for some time. In the interim, however, we can discuss the uncertain aspects and determine the most probable answers based upon experience and the language of the law.
Q: First, if the law allows an employer to discipline an employee who – on company time – is impaired due to marijuana usage, can the employer discipline another employee if the employer had a good faith belief that this other employee used or possessed marijuana in the workplace, but remained unimpaired?
A: Probably. Because the law allows employers to ban marijuana-usage on their premises and supports the enforcement of drug policies dealing with marijuana possession in the workplace, it seems that employers should be able to discipline employees for using or possessing marijuana on company time, regardless of impairment. However, this is an area of the law that may remain foggy for some time, so the safest course of action is to document all reasons for discipline based on anything marijuana-related (i.e., document the reasons for the “good faith belief”) and strictly follow workplace drug policies.
Q: Second, can a positive drug test – standing alone – support an employer’s good faith belief of employee-impairment?
A: Probably not. Because marijuana can remain in an individual’s system for weeks, a positive test result will not always be indicative of impairment, so an employer may need to observe and document something in addition to a positive drug test (e.g., slurred speech, irrational behavior, etc.) to discipline an employee for marijuana-impairment on company time.
Q: Finally, are employers allowed to not hire applicants and to discipline employees as a result of marijuana possession, usage, or impairment that occurs “off the clock?”
A: Probably not. CRTA amended the Illinois Right to Privacy in the Workplace Act (“Privacy Act”) to provide that – as of January 1 – an employer cannot take adverse actions against applicants or employees based only on their use of products outside of work that are lawful under state law (i.e., marijuana). If employers do take any such adverse actions, they could be liable pursuant to the Privacy Act for an employee’s actual damages, attorney’s fees, fines, and/or costs. However, certain non-profit organizations (e.g., those whose mission is to discourage the use of marijuana) are exempted from this prohibition on taking adverse actions against individuals for marijuana usage outside of the workplace.