If not, now is the time! Illinois just became the 11th state to permit recreational cannabis. Governor Pritzker signed this legislation, as promised, on June 25, 2019. Beginning January 1, 2020, the Cannabis Regulation and Tax Act (“Act”), will allow adults (21+) in Illinois to possess and consume cannabis. While there is a lot “rolled” into the 600 plus page law (pun intended), there are significant employment pitfalls for employers with regard to enforcing drug free workplaces. We are here to assist you in avoiding these pitfalls and give you some practice tips in preparation of the new law taking affect.
The good news is, the Act expressly permits employers to adopt and enforce “reasonable” and nondiscriminatory zero tolerance and drug free workplace policies, including policies on drug testing, smoking, consumption, storage, and use of cannabis in the workplace or while on-call – which is obviously good for employers.
However, on the flipside, the Act’s language indicates that employers are not allowed to take an adverse action against an applicant or employee for their marijuana usage outside the workplace. This is bad for employers since it makes it much more difficult for employers to identify and address use of marijuana by employees due to issues with marijuana testing not being like alcohol testing which calculates more accurately impairment at the time of testing. In particular, the Act amends the Illinois Right to Privacy in the Workplace Act (“Right to Privacy Act”), which prohibits employers from restricting employees from using legal products outside of work. Specifically, the Right to Privacy Act is amended to provide that “lawful products” means products that are legal under state law, indicating that recreational and medical marijuana are legal products that must be treated like alcohol and tobacco. Thus, employers may not discriminate against an employee or applicant who lawfully uses cannabis (recreationally or medically) off-premises during nonworking and non-on-call hours. Again, a difficult task given a test for marijuana alone will not be enough since testing does not include current impairment.
Much like with the Illinois medical marijuana law, this Act changes the emphasis from whether an employee “used” marijuana while employed, to whether the employee was “impaired” or “under the influence” of marijuana while at work or working. As a result, drug testing without any other evidence of the employee actually being impaired at work or while working will open the door to legal challenges. Specifically, refusing to hire, disciplining, terminating, refusing to return an employee to work or taking an adverse action against an employee or applicant who fails a pre-employment, random, or post-leave return to duty drug test for marijuana will arguably create a claim for the employee against an employer for a violation of Illinois law.
For example, an employee who undergoes a urine drug test (which shows use of marijuana within 30-45 days) following a workplace accident may argue that “recreational cannabis was lawfully used outside of work, and the accident/injury was unrelated to the employee’s legal use of cannabis outside of work.” Without more than the drug test result, the employer would be in a vulnerable position to argue against or defend such a claim. However, if the employer completed a post-accident report, which included a reasonable suspicion checklist, in which a trained supervisor observed and recorded symptoms/behaviors of drug use, the employer would be in a much better position to take an adverse action against the employee and dispute any such claim by an employee based on the observations and positive drug test.
With the changes to the Right to Privacy Act, it is important for employers to understand the potential exposure and damages. Under this Act, aggrieved employees can recover actual damages, costs, attorneys’ fees and fines. As such, employers should make sure their practices and procedures are practical in light of these changes, until and unless the legislature or a court provides further clarity.
Interestingly, the Act neither diminishes nor enhances the protections afforded to registered patients under the medical cannabis and opioid pilot programs. The catch here is that while cannabis use is not protected under federal law, the underlying medical condition for which the employee is using cannabis is likely an ADA and IHRA-covered disability! Much like under the Illinois medical marijuana law, the Act appears to require employers to take an additional step before disciplining or terminating an employee based on a “good faith belief” that the employee was impaired or under the influence of cannabis while at work or performing their job. After the employer has made a “good faith belief” determination and drug tested the employee – but before disciplining or terminating an employee – the employer must provide the employee with a reasonable opportunity to contest that determination. Once the employee is provided a reasonable opportunity to explain, an employer may then make a final determination regarding its good faith belief that the employee was impaired or under the influence of cannabis while on the job or while working, and what, if any, adverse employment action it will take against the employee without violating the Act. Requiring an employee to go through drug testing is still currently the best practice as a positive drug test will provide additional support for a supervisor’s reasonable suspicion determination.
Here Are Some Practice Tips to Protect Your Workforce and Diminish Risk:
- Educate yourself and evaluate all Company policies and practices that touch on providing and ensuring a safe workplace, including job descriptions (especially those safety-sensitive positions). Speak to legal counsel on an intimate basis. Assess workplace cannabis-tolerance and implement policies that can be enforced consistently amongst similarly situated employees. Policies that should be reviewed (and that could be affected) include those addressing health and safety (including accident reporting, smoking, and distracted driving), equal employment opportunity policies, workplace search/privacy policies and drug testing policies. You should also review with legal counsel, your drug testing vendor as well as your Medical Review Officer, the drug testing methodology being used to make sure that such is producing results that are useful, accurate and well vetted (e.g., using a test that determines cannabis use within the last 30 days is not as helpful as one that may test usage within 6-12 hours).
- Ensure managers and supervisors are well trained and capable of enforcing policies. Remember – exceptions and favoritism lead to discrimination claims. Conducting training, especially training on reasonable suspicion detection, will be necessary to avoid legal challenges to a supervisor’s reasonable suspicion determination. Creating and/or updating forms for accident reporting (including witness statements), reasonable suspicion checklists, and established protocols for addressing suspected impairment in the workplace, is now more critical than ever.
- Clearly communicate management’s position and policies to employees, especially where there is a shift in current policy or practice. Educate employees on the effect of lawful and unlawful drug use and the employer’s policies regarding marijuana. Remember, marijuana is still illegal under federal law, and, thus, you may have a zero tolerance policy within your Company. We now just have to balance that right with Illinois’ newest law.
- If your Company does not have a process already, institute a reasonable accommodation process and policy for employees who are medicinal users of cannabis. While a Company is not required to keep an employee who must use marijuana while on the job or report to work under the influence, you still have obligations of going thru the ADA process with the employee to determine if you can or cannot reasonably accommodate their disability so that they may perform the essential functions of their job while not being impaired.
- Engage competent legal counsel to assist you in this process and in addressing difficult situations before they lead to costly and time-consuming litigation.
Also important to note: more changes are coming to Illinois for employers on January 1, 2020! On August 9, 2019, Governor Pritzker signed Senate Bill 75 – the Workplace Transparency Act – into law. Effective January 1, 2020, major new changes will forever alter how Illinois employers manage harassment and discrimination issues as well as other workplace controversies. This new law requires mandatory sexual harassment training for employees; reporting and disclosure requirements; restrictions on employment agreements and several other mandates related to sexual harassment in the workplace. Be on the look out for an upcoming blog on these details so you are prepared for the new Illinois world of dealing with sexual harassment prevention.
About the Author
Heather A. Bailey, Esq., a partner with SmithAmundsen LLC, focuses her practice on labor and employment law issues for employers for the past 18 years. Heather may be contacted directly at: Direct Dial: 312.894.3266, Email: [email protected].