Legal Recreational Use of Marijuana Is Coming What Employers Should Know

July 2019

The Cannabis Regulation and Tax Act (the "Act"), signed by Illinois Governor J.B. Pritzker on June 25, 2019, becomes effective on January 1, 2020. The Act legalizes the recreational use of marijuana for adults 21 years or older. What does this mean for employers in Illinois? In short, perhaps not all that much. The Act includes important protections for employers which are summarized below.

Zero Tolerance/Drug Free Workplace Policies

The Act does not prohibit an employer from adopting zero tolerance or drug free workplace policies, including employment policies concerning drug testing. Accordingly, Illinois employers with existing zero tolerance, drug free work place and drug testing policies may continue to enforce these policies when recreational use of marijuana becomes effective on January 1, 2020, as long as these policies are applied in a non-discriminatory manner.

Use and Impairment

Consistent with an employer's right to maintain zero tolerance and drug free workplace policies, the Act does not require an employer to permit an employee to be under the influence or use marijuana at the employer's workplace, while performing the employee's job duties or while on call. An employee is considered "on call" when given at least 24 hours notice that he or she is on standby or otherwise responsible for performing job duties.

The Act provides that an employer may consider an employee impaired or under the influence if the employer has a "good faith belief" that the 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. Examples set forth in the Act include symptoms of the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery. In addition, impairment includes any accident which results in serious damage to equipment or property or carelessness that results in any injury to the employee or others.

The Act does not define what constitutes a "good faith belief" of impairment. Impairment resulting from the use of marijuana may be more difficult to assess than alcohol impairment. Accordingly, it is a good practice for employers to utilize a reasonable suspicion checklist to document observations of impairment, specifying the symptoms exhibited by the employee which led to the employer's good faith belief of impairment. As set forth above, the Act does not prohibit employer policies regarding drug testing. As such, an employee could be sent for a drug test where there is a good faith belief the employee is impaired by the use of marijuana.

Employee Discipline

The Act does not prohibit an employer from disciplining or terminating employment of an employee for violating an employer's employment policies and workplace drug policies. In the event the employer disciplines and employee on the basis that the employee is under the influence or impaired by the use of marijuana, the employer must afford a reasonable opportunity to the employee to contest the basis of the determination. Of course, an employer should document not only the discipline administered, but also that the employee was afforded an opportunity to contest the employer's impairment decision.

The Employer's Workplace

The employer's workplace as defined by the Act is no limited to the physical premises, but also includes a parking area under control of the employer and any other area used by the employee when performing his or her job duties, including vehicles whether leased, rented or owned.

Use Away from the Workplace

The Act includes an important amendment to the Right to Privacy in the Workplace Act which prohibits an employer from taking disciplinary action against an employer for using "lawful products" away from the employer's workplace during non-working hours. The amendment defines "lawful products" as products which are legal under state law (which as of January 1, 2020 will include recreational use of marijuana). Accordingly, employers should not discipline employees for recreational use of marijuana away from the workplace during non-working hours and when not on call.

Takeaways

Employers in Illinois may continue to enforce zero tolerance, drug free workplace and drug testing policies as they did before the legalization of recreational marijuana in Illinois. Perhaps the biggest challenge facing employers will be assessing impairment resulting from the use of marijuana since signs may not be as obvious as alcohol impairment. Employers should adopt or revise reasonable suspicion checklists to ensure they cover the impairment symptoms described in the Act as a means to document the "good faith basis" for disciplinary actions and/or drug testing. Finally, employers should not discipline employees for private recreational use of marijuana away from the workplace.