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Will the Grass Be Greener? Illinois New Recreational Cannabis Law

By Scott Cruz / Jun 26, 2019

On June 25, 2019, Governor Pritzker signed into law the Cannabis Regulation and Tax Act, which on January 1, 2020, makes it legal in the State of Illinois for any individual over the age of 21 to possess 30 grams (i.e. an ounce) of marijuana flower; five grams of marijuana concentrate; and 0.5 grams of edible-infused products for recreational purposes. The Act’s impact on Illinois employers remains to be seen, especially considering how marijuana consumption and possession remain illegal under federal law. However, the Act endeavors to provide extensive workplace protections for Illinois employers, emphasizing at one point that “workplace safety shall not be diminished and employer workplace policies shall be interpreted broadly to protect employee safety.” The Act’s extensive workplace protections are explained below.

First, the Act permits employers to adopt zero tolerance or drug free workplace policies, as well as employment policies concerning drug testing, smoking, storage, or use of cannabis in the workplace, while performing job duties off premises, or while on call, provided that the policy is applied in a non-discriminatory manner. The Act broadly defines “workplace” to include any building, real property, or parking area under the control of the employer or used by an employee while the employee is performing his/her job duties, including any employer vehicles used by employees that are leased, rented or employer owned. “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. More importantly, employers are not at all required to permit employees to be impaired and/or under the influence of cannabis in the employer’s workplace, while performing job duties, or while on-call. 

Second, while the law allows for employers to maintain reasonable policies to prohibit drug consumption and use at the workplace, the Act states that enforcement of these policies must be based on a good faith belief that the employee is impaired or under the influence of cannabis in the employer’s workplace, while performing job duties or while on call. However, such action comes with a caveat, as the Act states that if an employer disciplines an employee based on the employer’s good faith belief that the employee is under the influence of cannabis or impaired by it, the employer must provide the employee with an opportunity to contest the basis for that determination. Notably, the Act does not provide guidance on permissible means to contest, or the length of time an employer is required to provide an employee who wishes to contest. Unlike alcohol, there is no permissible threshold for impairment yet, nor does the Act provide a threshold for how much cannabis consumption constitutes legal impairment. In fact, the window for detection for cannabis use varies depending upon the testing method used. Urine tests may show cannabis use during a period from 1 to 30 days prior to the test. Hair testing can show use up to 90 days prior to the test. Saliva tests can detect usage over a 24-hour period. Unfortunately, in practice, it is unlikely that any of these tests can tell an employer whether the accused employee is currently impaired or under the influence. Thus, such decisions ultimately will be left up to the discretion of the employer and the employer’s written drug policy.

The Act does provide specific examples of employee conduct that may support an employer’s “good faith belief” that an employee is impaired or under the influence in the workplace. According to the Act, an employer’s good faith belief may arise from sudden changes in an employee’s speech, physical dexterity, agility, coordination, demeanor, and/or other irrational or unusual behavior, such as an employee negligently or carelessly operating a piece of machinery, disregarding the safety of other employees, getting into an accident that results in damage to equipment or property, disrupting production or the manufacturing process, or injuring another person due to carelessness. Arguably, this means that employers can no longer rely on simple, relatively inexpensive, objective drug tests to determine whether an employee has violated their drug free workplace policy. Instead, they will need to determine whether an employee is impaired by employer observation and judgment. 

While the above-mentioned provisions of the Act appear beneficial for employers, another part of the Act limits an employer’s ability to discipline or terminate based off of drug testing. The Act amends the Illinois Right to Privacy in the Workplace Act to provide that recreational and medicinal marijuana are “lawful products” and, as such, employers cannot refuse to hire, discharge or otherwise discriminate against an individual solely because the individual uses cannabis off premises during non-working hours and non-call hours. Use of cannabis outside of the workplace or during non-call hours that results in an employer’s good faith belief that an employee is “impaired” or “under the influence” while in the workplace, or while performing the employee’s job, or while on-call, appears to provide employers with a legitimate basis to discipline and/or terminate an employee for violation of the company’s zero tolerance/drug free workplace policy. Rather than, simply because the individual uses cannabis outside of the workplace and during non-call hours. 

In most cases of positive pre-employment drug testing, the cannabis use took place off-duty and off-premises. Therefore, under the Act, employers likely could not refuse to hire someone simply based on a positive test, unless, for example, they can prove that the cannabis use occurred in a parking lot the employers owns/controls. It is also important to note that employers and employees that are subject to federal regulations, such as Department of Transportation regulated drivers, federal contractors, and employers that receive federal funding can (and must) continue to comply with federal legal requirements including drug testing. 

Even though the Act does not become effective until January 1, 2020, now is the time for Illinois employers to begin updating their workplace policies and practices. Changes to consider include the following:

  1. Consider whether to address with your workforce the legalization of cannabis in Illinois at all and, if so, how, e.g., will your company make a preemptive statement that cannabis impairment and/or usage while on the job will not be tolerated? Will your company take a low-key approach to legalization and not raise it at all? Or is there a middle-ground approach that your company takes to legalization?
  2. Evaluate whether the legalization of cannabis in Illinois will affect your workplace drug policies and employment policies pertaining to disciplinary action currently in place, including whether to specify that on-the-job cannabis consumption or being impaired or under the influence of cannabis at work, or testing positive for cannabis in the system, are against company policy and could lead to disciplinary action, up to and including termination.
  3. Train supervisors on cannabis-related impairment signs and procedures to follow as a result. The Act provides specific symptoms to look for when making a determination that an employee is “impaired” or “under the influence.” This training will be very helpful in establishing that an employer had a “good faith belief” that the employee was impaired on the job and therefore that discipline was warranted and lawful.
  4. Establish a written procedure for employees to contest a cannabis-based disciplinary decision. The Act requires that employees be given a reasonable opportunity to contest the basis of a disciplinary decision for being impaired or under the influence on the job. Having a written procedure will help employers establish that employees had a reasonable opportunity to contest a disciplinary decision.

For assistance in preparing your workforce for the effective date of the Cannabis Regulation and Tax Act, please contact Scott Cruz at scruz@clarkhill.com or 312.985.5910, Paul Starkman at pstarkman@clarkhill.com or 312.517.7508, Autumn Moore at Amoore@clarkhill.com or 312.360.2503, or another member of Clark Hill’s Labor and Employment Law practice group.