DAZED and CONFUSED: Employer Concerns Due to Passage of Illinois’ Recreational Marijuana Legislation

Nicole D. Meyer, Esq.
Davis & Campbell, L.L.C.
ndmeyer@dcamplaw.com

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.

What We Know

• As is often the case with new legislation, parts of CRTA are somewhat clear, while other areas are hazy.  Let’s start with what we do know about the bill as it relates to employers.
• Employers may ban both use of and impairment from marijuana: a) in the workplace; or b) when on-call; or c) when performing job-related duties in any location, as directed by the employer.
• Employees are “on call” when they are scheduled with at least 24 hours’ notice to be on standby.
• Employers may continue to use or may implement zero tolerance policies concerning the use and/or possession of marijuana in the workplace/while employees are on-call.
• Employers may utilize drug tests – pursuant to the employer’s drug policies – to screen employees for marijuana when employers have a good faith belief the employees being tested used or possessed marijuana in the workplace, while on-call or when performing job-related duties.
• Employers may discipline employees (e.g., may terminate their employment) – pursuant to the employer’s drug policies – when employers have a good faith belief that the employees were impaired by or under the influence of marijuana in the workplace, while on-call or when performing job-related duties.  (CRTA provides examples of when an employer may consider an employee to be impaired by/under the influence of marijuana.)
• If employers decide to discipline employees for being impaired by/under the influence of marijuana, they must afford the employees an opportunity to contest the employer’s determinations.
• Employers will not be liable for incidents caused by “marijuana-impaired” employees, if employers did not know/have reason to know of such impairment.
• CRTA will not interfere with an employer’s ability to comply with other laws (e.g., federal DOT regulations), to comply with the terms of their federal or state contracts, or to receive federal or state funding.

Confusion Sets In

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.

Next Steps for Employers

• Review drug policies concerning marijuana to ensure compliance with the law.
• Determine if drug testing for marijuana is in the best interest of the company, especially if such testing is to determine if applicants or employees used marijuana when they were “off the clock” (e.g., pre-employment testing and random testing).
• Train managers/supervisors on how to detect and document marijuana impairment.
• Consult with an attorney regarding any questions you have concerning this new law.