In June 2019, Illinois became the 11th state in
the country to legalize the use of recreational marijuana. This January, that
law went into effect and was met enthusiastically by Illinoisans: newly legal
dispensaries did $10 million in business in the first week alone.
Although it is often viewed as a legal matter affecting
individual citizens, legalization introduces numerous complications and
concerns for employers. While employers can still regulate the use of marijuana
in the workplace, legalization has made enforcing those policies much more
difficult and employers risk compliance violations if they overstep their
bounds.
Whether you are a business owner or HR professional, you are probably already grappling with the effects of Illinois marijuana legalization. At Launchways, we know that our clients certainly have. So, we decided to bring in a legal expert and our in-house HR expert for a free webinar on navigating legalization in Illinois. We hosted the webinar on February 19th but you can still stream it on-demand anytime.
We want everyone to benefit from
the advice that our experts gave during the webinar, so let’s take a look at
the key points covered during the lively session.
Webinar Overview
Legalization Details
and Key Distinctions
What can employers legally
do from a compliance standpoint?
Compliance Concerns
from Legalization
Webinar Overview
On February 19th, HR
leaders from across Illinois tuned in for a presentation by two industry
experts.Our first panelist was Heather Bailey. Heather is a partner in
SmithAmundsen’s Labor & Enforcement Practice Group and has practiced in
employment and labor counseling and litigation for 18 years. She
counsels on day-to-day operations, human resources, and management decisions
regarding employees, practices, and policies. In short, she is an expert in
navigating employers through compliance issues and helping them create
effective and compliant employee policies.
The second panelist was Launchways’ HR Client Manager,
Karina Castaneda. Karina is a seasoned HR professional with over 15 years of
experience working in employee benefits, performance, and staffing. She helps
Launchways clients with all of their compliance questions and concerns and
provides them with strategic advice regarding talent management.
Needless to say, both panelists know the ins-and-outs of
compliance and effective employee management. And they proved full of valuable
insights into effectively responding to marijuana legalization in Illinois.
Legalization Details and Key Distinctions
To start the webinar, our panelists went over the specifics
of what the Illinois legalization law, officially known as the Illinois
Cannabis Regulation and Tax Act, does and does not do.
The Act made recreational consumption of marijuana legal
throughout Illinois and enshrined marijuana as a legal substance that employers
can not regulate outside of the workplace as part of the Illinois Right to
Privacy in the Workplace Act. The fundamental consequence of legalization and
the modification of the Right to Privacy Act is that employers’ enforcement
strategy needs to change from regulating use or consumption to regulating
intoxication. Luckily, our panelists provided clear guidelines for how to
effectively make the shift.
What can employers legally do from a compliance standpoint?
Employers can still take action against employees for being
intoxicated in the workplace from marijuana just as they can for alcohol
intoxication at work. Where things get tricky is that there is no such thing as
a “breathalyzer” for marijuana. Your current drug testing policies will likely
catch general drug use, but cannot pinpoint real-time intoxication,
making them an ineffective enforcement tool that will expose you to compliance
and lawsuit liabilities if you try to use them as the sole basis to prove intoxication
at work.
As Karina outlined during the presentation, the law does not
prohibit employers from regulating the possession, use, or distribution of
marijuana in the workplace. So, employers can treat marijuana much as they
already treat alcohol in the workplace, just with a slightly different
enforcement strategy. Specifically, they should establish clear intoxication
standards based on a combination of drug testing and document reasonable
suspicion signs. And, says Karina, employers should update their policies to
clarify the company’s stance on marijuana and the consequences of using the
substance at work.
Heather delved deeper into effective and compliant
enforcement of a zero tolerance workplace drug policy. Specifically, she
emphasized the importance of establishing a good faith belief in intoxication
as the grounds for any disciplinary action. She advised employers to provide
concrete reasonable suspicion checklists and train managers on how to identify
symptoms and record them using the checklists. Importantly, drug testing should
be used to support these checklists but not used as an enforcement tool on
their own.
Compliance Concerns from Legalization
Our panelists explained that employers need to tread
carefully when pursuing disciplinary action against impaired employees in light
of legalization. In addition to relying on a good-faith belief in intoxication
and reasonable suspicion checklists, Heather emphasized that employers must
allow employees the opportunity to contest the allegations to avoid compliance
issues or potential grounds for lawsuits. However, the burden lies on employees
to prove that they were not impaired so long as the employer has provided
reasonable grounds for disciplinary action.
Heather also explained that because the Act protects
marijuana use outside of work hours and while not on call, employers have to
tread carefully so that they do not give even the appearance of discriminating
against employees for using marijuana in their free time. That means that you
cannot refuse to hire, terminate, or otherwise treat employees differently
because of their perceived marijuana use so long as they are not using it at
work. Similarly, you may face lawsuits if you take disciplinary action that is
not based on a good-faith belief in actual impairment.
Both panelists cautioned employers against the inconsistent
or uneven application of drug testing policies given the additional
discrimination risks introduced by legalization. If drug testing seems targeted
and is not based on recorded reasonable suspicion, you may face discrimination
lawsuits. And across the board, clarity is your friend: make your drug policy
and enforcement language as clear and explicit as possible and communicate
changes to managers and employees.
Heather finished her presentation with a list of
best-practices that employers should follow, including:
Have a Zero Tolerance drug policy
Educate employees on your company’s stance on
cannabis
Have an ADA process for medical marijuana users
Update job descriptions for safety-sensitive
positions
Train, train, train management
Do not rely on drug testing alone to prove
impairment
Karina outlined how these changes affect your human
resources policies, advising employers and HR professionals that they should:
Evaluate current drug testing policies,
including pre-employment testing, general testing, and post-accident testing
Update employee handbook with a clear policy
that states the company’s stance on cannabis use
Notify and train managers on policy updates in
light of legalization
Enlist outside help for areas of confusion or
when additional assistance is needed to update policies or train employees
Stream the Webinar for More Valuable Insights
In this article, we covered the general overview of the panel’s advice to employers and HR professionals. But addressing the effects of cannabis legalization in the workplace is such a complex and important topic that it is best to hear from the experts themselves. Stream the complete webinar on-demand anytime here.
Do you need help ensuring your drug policy and testing procedures are compliant? Launchways offers a free handbook and employer policy review. Request your free handbook review today.
“Discrimination” is a word that no human resources
professional ever wants to hear. Unfortunately, many HR leaders are unaware
that discrimination can easily be lurking where we expect it least: in our
employee benefits programs.
Moving forward, we’ll explore:
The difference between unfairness and discrimination
How employee benefits can unknowingly be
discriminatory
What HR needs to do identify and eliminate
discriminatory benefits practices
Discrimination vs. Unfairness
Discrimination is the unjust or prejudicial treatment of
different categories of people, particularly on grounds of race, age, or
gender.
Unfairness is a lack of equity; that is to say, a situation
in which not everybody is treated the same way.
Those concepts are closely tied – and they can certainly
occur at the same time – but they’re not exactly synonyms.
Fairness is an ideal, a target we should be able to hit the
vast majority of the time. As an HR department, nobody is ever going to
love every policy or initiative, but if your policies and the way you treat
people feels consistent, you’ll be fine. When fairness issues become systemic
and begin to affect work or culture, then you have a problem.
On the other hand, it’s never okay to be
discriminatory from a moral or legal/compliance standpoint.
How does this apply to employee benefits?
By nature, insurance isn’t always “fair.” For example, if a
30-year-old employee and a 68-year-old employee are on the same health plan,
making the same employee contribution, the 68-year-old will see much more value
due to their increased likelihood of medical need.
If you’re the 30-year-old in that scenario, that doesn’t
feel very fair, but it’s not discriminatory. That’s because, if that
30-year-old had the same medical needs as the 68-year-old, the plan would be
just as valuable to them. There’s no unfair barrier in place blocking access
due to age.
The EEOC dictates that programs are not discriminatory in
that exact scenario as long as they provide either equal
cost or equal benefit.
HR directors and benefits managers hear a lot from employees
about why their benefits offerings are imperfect, but it’s crucial to sort out
a fairness issue from actual discrimination.
How can employee benefits be discriminatory?
As their name implies, employee benefits are valuable perks
that positively impact people’s lives. When you start offering different
employees different levels of benefits, you encounter a real fairness issue,
but depending on the way you’re classifying employees when you make those
offers, you might be discriminating and not even knowing it.
The law states that in order to offer two employees
different benefits packages, you need to demonstrate those two individuals are
on different levels in terms of “bona fide employment-based classifications.”
Those bona fide classifications include:
Full Time vs. Part Time status
It’s okay to offer full-time employees benefits
that part-timers don’t receive
Geographic location
It’s okay (even necessary) to offer eligible
employees different benefits packages based on where they live
This generally applies to businesses that
operate across multiple states
Different dates of hire and lengths of service
It’s okay if senior employees have been
“grandfathered in” with an old plan
So, the bottom line is, if you have two full-time employees
working in the same office who got hired on the same day, they should have
equitable access to the same employee benefits programs.
What about managers and executives?
The most common way businesses inadvertently commit benefit
discrimination is by the way they structure benefit offerings to so-called
Highly Compensated Employees (HCEs). An HCE is someone who:
Makes more than $130,000 or
Owns more than 5% of the business
If your business is self-insured, the ACA prevents
you from offering preferential benefits packages to HCEs. If your business is fully
insured, you can offer a higher tier of benefits (or lower premium costs)
to HCEs if your business does not offer a cafeteria plan. In the event you are
insured and have a cafeteria program in place, it’s unlikely you will be
able to offer different plans to your executives, but always double check with
your broker.
Regulations concerning benefits discrimination
If you would like to explore the compliance frameworks to
fully grapple with the problem, here are some places you can find
discrimination regulations specifically tied to employee benefits policies.
There are three compelling core reasons to review your
employee benefits programs through the lens of checking for discrimination:
Reducing discrimination is simple the right
thing to do
An employee dispute over a discriminatory
program could become a long legal battle
If regulators discover or catch wind of
discriminatory practices, your business will be fined
As an HR leader, you need to be proactive and be sure you:
Lead an internal audit of your employee benefits
offerings to ensure packages are offered in a way that is nondiscriminatory
Contact your benefits broker to ensure they are
aware of all relevant regulations and can describe to you how and why your
program is compliant
Inform your legal and compliance teams as
quickly as possible if you detect any issues, shortcomings, or possible areas
of discrimination
Take ownership over correcting all issues as
quickly as possible
When you work to eradicate hidden discrimination from your
policies and offerings, you’re strengthening your organization for the
long-term and doing your part to create a better work experience for all
professionals.
Takeaways
Employee benefits discrimination unfortunately occurs often
because the situations in which businesses can or can’t offer different
packages can confusing at times.
Just remember:
Insurance isn’t necessarily “fair” (because
there’s no guarantee people will get the same value out of it), but it should
never be discriminatory
All differences in benefits offerings should be
based on bona fide employment-based classifications, like part time vs. full
time, location, or date of hire
If you are self-insured or have a cafeteria
plan, you cannot offer preferential benefit packages to highly compensated
employees
All HR departments should lead an audit of their
offerings in collaboration with your benefits broker and legal team
The flow of talent into and out of your organization has a direct impact on your ability to do great business and thrive. That means every organization should have a clear vision and thoughtful approach to new employee onboarding.
Unfortunately, for many businesses, onboarding has evolved into a major pinch point. It’s become increasingly complicated, and it’s rarely satisfying for either the new employee or the organization who’s betting on their productivity.
Moving forward, we’ll explore:
What new employees actually need to get started
Why the challenge of new employee onboarding/enablement has grown
How innovative employee management platforms address those challenges in effective and productivity-boosting ways
Breaking Down New Employee Support Needs
Let’s start by considering your brand-new employee. It’s their first day. They’ve got the talent and ability to be a difference-maker for you, and their enthusiasm will never be higher.
So, what do they need from you right away to feel authentically plugged in and ready to hit the ground running?
Let’s take a minute to break it down, piece by piece:
Getting Paid
Payroll enrollment is one of the most basic and important aspects of employee onboarding. You need your new employees to see a clear, legitimate path to payment from day one.
When you get payroll enrollment right, it creates a highly satisfying experience that motivates your new hires to dig in, roll up their sleeves, and immerse themselves in the work.
If your new employee’s first check isn’t prepared on time or if the information on it is wrong, that creates a negative early impression for your talent, and correcting the issue will only cost them more time and effort.
Signing Up for Benefits
As with payroll, smooth employee-benefits enrollment is crucial to getting your new talent bought in and ready to do great work.
Benefits election actually contains several specific but unique challenges:
Providing a platform and experience that makes signing up for benefits clear and easy
Offering educational resources that help new talent make the best, most cost-effective choices
Getting that documentation from your employee to your insurance providers
There is an incredibly wide spectrum of knowledge and comfort levels with health insurance across the workforce, and even for great talent, making benefit elections can be intimidating. When you’re able to make the process feel straightforward and empowering, it goes a long way in building buy-in and setting new hires up for success.
Work Enablement
Once your employees are enrolled in payroll and signed up for benefits, they’re probably feeling pretty legitimate and excited about the journey they’re starting. Capitalizing on that moment of enthusiasm is crucial, but it’s not possible unless you have a strong hold on the actual work enablement piece.
What do employees need in order to do great work? For some, that depends specifically on their role within your organization, but there are a few general areas that you need to address for every new hire.
Hardware
Every single employee within your organization needs technological hardware in order to do their job well, whether it’s patrol trackers and communication devices for security guards, tablets for field service workers, company phones for sales professionals, or just the standard desktop and laptop computers many people need to get work done.
Of course, you can’t just pass out expensive tech tools without a tracking and accountability system in place to ensure your hardware is kept in good condition and you know where all your devices are located. That means you’ve got the double-tough responsibility of getting your new hire everything they need as quickly as possible while also needing to focus on documentation.
Software/Accounts/Credentials
Passing out hardware is just the beginning of meeting your new employees’ technological and work enablement needs. In order to be a fully functional member of the team, they need all kinds of accounts created.
Depending on the situation, that might require purchasing software licenses, creating new login credentials, and so on, but to give you a sense of how much really goes into technical work enablement now, each employee likely needs:
An email account
A login for company ERP/productivity platform
Standard office software licenses (word processing, spreadsheet creation, etc.)
Document sharing/collaboration portal credentials
Access to any relevant SaaS or cloud-based apps
FAQ Support
Alright, so your new employee is fully enrolled in payroll and benefits, they have been issued their company hardware, and they have all the accounts and credentials they need to get started. What’s left? All the little stuff, of course!
No matter how smart or experienced your new hire, there are a variety of questions that are going to pop up in any new job scenario. The faster and more directly and effectively you can answer those questions, the faster your new hire will stop feeling like the new hire and start feeling like a fully-integrated team member.
That means you need some kind of reference resource built into your onboarding system that incoming talent can use as a floatation device during times of confusion or panic in their opening weeks.
With that piece in place, you’ve officially onboarded a new hire in a way that supports great work and great organizational buy-in.
Why Is It So Hard to Get Employee Onboarding Right?
When you dissect it like we have, new employee onboarding is a massive responsibility, and the expanded use of technology hardware and software over the last 25 years has only made it more complicated.
Thanks to all those tech support needs, onboarding has grown into a shared responsibility of HR & IT. Unfortunately, though, the interdepartmental back-and-forth often leads to communication breakdowns, duplication of effort, and poor data hygiene.
Finally, a better way is emerging.
How Employee Management Platforms Address These Challenges
Employee management platforms are software solutions that integrate as many of the tasks related to employee onboarding and long-term employee management as possible into a single system.
Employee management platforms eliminate repetitive tasks, significantly streamlining the paperwork and communication associated with onboarding tasks and allowing for full new employee enablement in a single day.
Using an employee management platform, you can leverage a single system your employees can use to:
Enroll in payroll and benefits
Access, download, or log into the apps and software they need
Connect and communicate with their colleagues
Get answers to basic questions about employee protocol and support resources
At the same time, your managers, HR, IT, and payroll professionals can use the system to:
Assign and track hardware
Monitor employee time usage
Create (or disallow) credentials, accounts, and permissions as needed
Build and automate custom workflows between tools
Make updates to the system using a single source of truth
How Employee Management Platforms are Providing New Gains
By bringing all that management, administration, and work enablement functionality together in one place, employee management platforms create incredible time savings. That means more time for productivity!
When there’s no repeat data entry and everything can be handled through a single platform, your HR professionals will have more time to provide a holistic, employee-centered onboarding experience that sets new hires up for success and leaves them feeling ready to take on the world for your company.
When you provide a platform that simplifies hardware assignment, it frees your IT team from the mindless tasks of device management and creates new opportunities for them to pursue long-term quality-of-life initiatives for your employees.
And, of course, when you provide a new employee onboarding experience that feels cutting edge, easy-breezy, and empowering, your incoming talent will have a greater sense of security, a greater sense of motivation, and a greater sense of purpose.
Takeaways
Employee onboarding procedures can feel like an endless list of equally crucial tasks. Employee management platforms are creating new opportunities to untie that knot and rethink onboarding.
Remember:
New employees need to feel legitimate and see a clear path to compensation from day one
New employees need their work tools as fast as possible to accelerate their integration into work and company culture
Onboarding can feel over-complicated because the responsibilities are spread out across several different departments
By all integrating the processes and tasks into a single system, businesses can maximize new employee onboarding and get the most out of their talent from day one
How to Learn More
Rippling is revolutionizing the onboarding process by helping HR professionals support their new hires better than ever.
By integrating all aspects of the onboarding process into a single digital platform, Rippling accelerates the new employee orientation experience, connecting hires with the tools, coverage, and credentials they need with a minimal number of clicks.
To learn more about how Rippling can smooth the employee onboarding process at your business and create a new way of managing HR and IT responsibilities, contact them today.
At Launchways, we’re constantly looking for new innovative, effective ways to help businesses meet their HR, employee benefits, and business insurance needs. This month, we’re proud to announce we are adding Group Insurance Captive solutions to our ever-expanding portfolio of solutions for growing businesses.
In this post we’ll:
Define Group Insurance Captives in a straightforward and useful way
Explain the value proposition of our group captive membership
Describe why we’re so excited to be offering this new program
Provide next steps for businesses hoping to learn more about our group insurance captive
What is a Group Insurance Captive?
A “captive” insurance company is an organization founded with the sole purpose of providing business insurance to its owner(s).
Essentially, a captive is the purest form of self-insurance. A business or group of businesses forms a captive in order to meet their insurance needs without being beholden to the packages, limitations, and pricey markups of the traditional marketplace.
A group insurance captive specifically involves a group or “pool” of businesses with similar scales or goals coming together to create and share a captive insurance company. That new company, managed by a designated third party, obtains insurance for each owner/member organization, processes their claims, and maintains the overall health of the pool.
How Do Businesses Benefit from Joining Our Group Insurance Captive?
So, now that you know what a group insurance captive is, the natural question is: Why would you want to be part of one?
Organizations that form or participate in a group captive have greater independence, greater power for self-determination, and greater potential for profit. Let’s take a look at some of the specific ways those gains play out:
In the traditional marketplace, you rent your insurance. With a captive you own it.
Total continuity of services as desired
No stress over price-gouging at policy renewal
In the traditional marketplace, business insurance is an expense; in a captive, it’s an opportunity for return.
Get up to 60% average return on premium
Use safety initiatives/risk management skills to maximize your payout
With your own insurance company, you can get exactly the coverage you need and eliminate overspend.
No more bundled services you don’t want or need
Turn self-knowledge into efficiency-of-scale
Owning your insurance company means you call the shots!
Work with your pool partners to set the tone for the captive
No more getting sold out or let down by the insurance company
With a captive, you have greater access to insurance data than ever before.
Understand your needs, claims, and expenses better than ever
Gain insights to help streamline coverage/claims processing in the future
How to Know if You’re a Good Fit for Our Group Insurance Captive:
Once you hear about the potential benefits of group insurance captives, it’s natural to wonder if your organization is a fit to join.
If your business can answer “YES!” to each of the following questions, then you’re a great candidate for our new group insurance captive program:
Do you pay $150,000 or more in insurance premiums each year?
Does your company have an entrepreneurial spirit?
Does your company desire greater control and stability?
Does your company understand the concept of “risk for reward?”
Is your company committed to safety?
Why Join a Launchways Group Insurance Captive in 2020?
Now that you’ve got a general understanding of what group insurance captives are and what kind of value they offer businesses, it’s time for us to answer another important question: Why us?
Since our inception, Launchways has focused on providing support and solutions that help growing businesses thrive in the immediate future while also planning for long-term success.
We’re entering the world of Group Insurance Captives because we understand that business insurance needs are increasingly diverse, and more and more organizations are feeling frustrated by the limitations of the traditional marketplace. We want to help our clients bet on themselves, forge powerful partnerships with likeminded businesses, and get the exact coverage they need to thrive.
We believe in the power of growing organizations to improve the business space and lead the next wave of American innovation. That’s why we’re helping businesses find potential pool partners, organizing our group insurance captive, and connecting organizations with the management and expertise they require to ensure their captive experience is successful.
Takeaways:
Here at Launchways, we’re excited to be helping our clients gain the power and freedom group insurance captive membership can bring. We’re looking forward to applying our innovative approach and emphasis on specific customer goals to help businesses gain the power, efficiency, and profit potential our group captive offers.
Remember:
Group insurance captives offer businesses true ownership over their insurance, enabling:
New profits from return on premiums
Increased control over claims management
Innovative partnerships with pool peers
To be a strong group captive candidate, a business should pay at least $150,000 in annual insurance premiums and be a stable but innovative organization
On June 25, 2019, Governor Pritzker signed the Illinois
Cannabis Regulation and Tax Act into law, making Illinois the 11th
state to legalize recreational cannabis. The law went into effect this January
and dispensaries sold over $10 million worth of recreational marijuana in the
first week.
The legalization of Illinois recreational cannabis has
potentially serious ramifications for business owners, HR professionals, and
managers. Many fear that their employees will show up high at work or get high
at work during breaks. And because using recreational marijuana is no longer in
itself illegal in Illinois, employers can’t enforce zero-tolerance policies
towards its use – just its use at work.
While there are valid concerns, Illinois recreational
marijuana legalization doesn’t pose an existential threat to employers. As long
as you are careful and implement a few straightforward policies, there is no
reason to fear legal recreational cannabis.
So, how can you protect your business from having employees
show up high at work and from discrimination suits for taking action against
employees for being high at work? In this article, we’ll explore:
Concerns About Recreational Marijuana in
Illinois
Preventing Employees From Being High at Work
Protecting Yourself Against Lawsuits for
Policies Against Marijuana in the Workplace
Why Illinois Recreational Marijuana Legalization
Isn’t a Threat to Businesses
How to Learn More
Concerns About Recreational Marijuana in Illinois
Whether you support it or not, Illinois recreational
cannabis legalization is a reality. What does that mean for you as a business
owner, manager, or human resources professional?
For the most part, your policies on recreational marijuana
and drug testing in the workplace shouldn’t have to change. But the way that
you enforce those policies may need to be modified.
Despite what some business owners think, and some overeager
employees might insist, your employees aren’t suddenly allowed to show up high
at work. Employers are still allowed to have zero-tolerance policies for the
consumption of recreational marijuana, intoxication from recreational cannabis,
or the storage of marijuana during work hours or while on call.
But you’re no longer allowed to take action against
employees who use recreational marijuana outside of company time and are not
high at work. Many employers might not have a problem with this on the face of
it. After all, off the clock employees’ time should be their own unless the
after-effects impact their job performance.
However, even if you fully support the use of recreational
cannabis outside of work, the legalization of recreational marijuana in
Illinois makes it harder for you to prevent employees from being high at work.
And it exposes you to potential discrimination lawsuits if you take action
against employees for being high at work based on evidence of their use of
recreational cannabis in general rather than just at work.
After all, there is no equivalent of a breathalyzer for
marijuana as of yet. That means that there is no surefire way to tell if an
employee is high at work. And methods for drug testing in the workplace have
varying degrees of accuracy. Many companies that are currently drug testing for
marijuana are using hair follicle drug testing. But hair follicle drug testing
is only useful to tell whether or not an employee has used recreational
marijuana in the past several weeks or even months. That means that hair
follicle drug testing is now more or less obsolete for drug testing in the
workplace in states with legalized recreational cannabis. And urine tests are
not even a reliable solution for drug testing in legal states as they can
deliver positive results for recreational marijuana use anywhere
between two weeks and a month in the past.
You might think that you can still take action against
employees for using recreational marijuana during off hours because recreational
cannabis is still illegal on a federal level. That might be true if the
Illinois law simply allowed employers to control marijuana use at work and did
not give the same right for off-work hours. But the 600-page law amends the
Illinois Right to Privacy in the Workplace Act that prohibits employers from
punishing employees for using legal substances outside of work to expand the
definition of legal substances to include recreational cannabis and medical
marijuana. So while you won’t break federal law by punishing employees for
consuming recreational marijuana outside of work, you will be in violation of
state law.
So, how can you stop employees from being high at work
without breaking the new Illinois recreational marijuana legalization law or
exposing yourself to lawsuits?
Preventing Employees From Being High at Work
If you can’t rely on traditional drug testing in the
workplace to prevent employees from being high at work, what can you do?
The Illinois recreational cannabis law establishes reasonable
suspicion or good-faith belief that an employee is high at work as a legitimate
standard for taking action against that employee. So, until somebody invents foolproof
technology for marijuana-use testing to see if an employee is currently high at
work, your best bet is to leverage the reasonable suspicion standard.
How can you take advantage of the good-faith belief standard
as laid out in the Illinois recreational marijuana bill? The first step you
should take is to train supervisors and managers on how to identify drug use,
including distributing reasonable suspicion checklists that they can fill out
for incident reports, and educate all of your employees about the reasonable
suspicion standard that will be used to tell whether they are high at work.
That way, your team will be prepared to meet the standard and your company will
be sheltered from liability for enforcing the standard. You should also include
the reasonable suspicion checklists in all of your accident report forms,
especially if your business is especially susceptible to workplace-safety
issues.
According to the Illinois recreational marijuana
legalization law, these are the symptoms that your team should record if they
suspect an employee is high at work and that you can use to meet the good-faith
standard:
Changes in speech, dexterity, agility or
coordination
Irrational, unusual or negligent behavior when
operating equipment or machinery
Disregard for the safety of others
Carelessness that results in any injury to
others
Involvement in any accident that results in
serious damage to equipment or property
Production or manufacturing disruptions
So long as you are meticulous about recording symptoms at
the time, you should not have to fear reprimanding employees for showing up
high at work. Under the Illinois recreational marijuana bill, if an employer
demonstrates a good faith belief that an employee is high at work, the burden
shifts to the employee to prove that they were not impaired.
And you can still use drug testing in the workplace as part
of your efforts to dissuade employees from being high at work. Random drug
testing for marijuana is explicitly permitted under the new law and can provide
additional support for reasonable suspicion claims. And you can maximize the
usefulness of random drug testing by reviewing your methods for drug testing in
the workplace to ensure that you are testing for use in the past 6-12 hours
rather than the past 30+ days. For instance, replace hair follicle drug testing
with more accurate saliva or blood testing. Just don’t use drug testing as the
sole justification for any disciplinary actions.
Protecting Yourself Against Lawsuits for Policies Against Marijuana in the Workplace
Now that you know how you can effectively address the use of
recreational cannabis in the workplace, let’s take a look at how you can
safeguard yourself against lawsuits when you take action against an employee
for being high at work.
First and foremost, don’t take action against employees
without the standards we outlined in the last section and always air on the
side of caution, even if you meet the reasonable suspicion standard. It’s
generally not worth risking serious disciplinary action against an employee
unless their use of recreational marijuana poses a threat to their productivity
or workplace safety, and if that is the case, then they have probably well
surpassed the good-faith suspicion standard.
Beyond following proper enforcement procedures, another step
that you can take to minimize your liability is to give employees advanced
notice regarding any changes in drug enforcement policy and to provide
comprehensive education about the recreational marijuana policies and their
enforcement. This can head off claims of unfair surprise, prevent unnecessary
lawsuits from being filed because an employee didn’t know what the policies
were, and ensure that managers enforce the policies properly.
You may well have to review your drug enforcement policies
as well as your anti-discrimination policies because Illinois recreational
cannabis legalization adds pressure behind previous discrimination issues.
Recreational marijuana enforcement has a history of racial bias and you have to
tread especially carefully to avoid any semblance of bias, whether conscious or
unconscious. So, conduct rigorous implicit and explicit bias training and make
sure that random drug testing in the workplace is genuinely random and applies
to all employees equally.
So long as you follow these steps, you shouldn’t have too
much to worry about regarding discrimination lawsuits as a result of the
legalization of recreational marijuana in Illinois.
Why Illinois Recreational Marijuana Legalization Isn’t a Threat to Businesses
The good news is that unless you work in an industry fraught
with workplace-safety concerns, such as construction, Illinois recreational
marijuana legalization is cause for caution rather than concern. As long as you
put the right systems in place, there’s no reason to be too worried about the
legalization of recreational marijuana. You will still be able to stop
employees from being high at work and take action against employees who do use
recreational marijuana at work, without fear of damaging lawsuits.
And while you should protect yourself from repeated
workplace intoxication that causes performance or cultural issues and from
discrimination lawsuits, casual use by employees should not be an issue for
most employers. Ten other states have legalized recreational marijuana and
businesses continued to thrive. States with legalized recreational cannabis states
represent four
out of the top five state economies in the country and California, the
poster-child for legalization, is the largest state economy in the country.
Illinois business owners will be fine – so long as they handle the transition
correctly.
Illinois recreational cannabis even presents opportunities
for employers to set themselves apart and win the war for talent. According to
a 2019 survey
by PBS Research, Civilized, Burson Cohn & Wolfe, and Buzzfeed News,
half of Illinoisans surveyed said that their ideal workplace would permit
marijuana use outside of work but that two-thirds were uncomfortable with use
in the workplace. If those numbers are accurate, most employees are likely to
respect the prohibition of marijuana use at work and business owners can
improve their employer branding by taking a hands-off approach to recreational
cannabis use outside of work.
How to Learn More
The legalization of Illinois recreational cannabis has made things a lot more complicated for business owners and HR professionals throughout Illinois. There’s no way that we can cover all of the complexities and details of how you should handle the legalization of recreational cannabis, prevent employees from being high at work, and protect yourself from discrimination lawsuits in one article. Nor are we attorneys who can give you sufficient legal advice.
That is why we’ve enlisted the help of an attorney who is well-versed in all things employment law to help guide business owners and HR professionals through this turbulent transition. Heather Bailey is a partner at SmithAmundsen’s and an expert in employment and labor counseling and litigation. She’ll be joining our very own HR Client Manager Karina Castaneda for a comprehensive free webinar on understanding the ins-and-outs of the Cannabis Regulation Act and how it affects Illinois employers.
