Governor Pritzker signed the Workplace Transparency Act in August of 2019 and this January, the new law went into effect. While many people, business owners and employees alike, welcomed the law as appropriate in the #MeToo era, employers are grappling with how to adapt to the new regulations.
The law makes sweeping changes to the Illinois Human Rights Act, providing greater protections for workers and introducing new requirements for employers including mandatory sexual harassment training and changes to confidentiality agreements and arbitration agreements. But while the law is a big deal, it is by no means a threat to Illinois employers. With just a few smart policy changes you can not only ensure compliance, but also make your business run smoother than ever.
Let’s take a look at what the new requirements are and how you can adapt to them easily and effectively, including:
What the Workplace Transparency Act means for employers
How to meet the new training requirements
Navigating other compliance issues from the new law
Best practices to protect your brand and your workplace culture
What the Sexual Harassment Training Requirements Mean for Businesses
What does the new law entail? Broadly speaking, the Workplace Transparency Act and its impact on employers can be broken down into two parts: how companies train their employees and how they treat their employees.
The first part is the biggest one for most employers. All Illinois businesses are now required to conduct sexual harassment training on an annual basis. The law also establishes standards for sexual harassment training programs. Companies must now implement an approved training program or develop their own program that meets the minimum standards. Key standards include:
An explanation of sexual harassment consistent with the definition outlined in the IHRA
Examples of conduct that constitutes unlawful workplace harassment
A summary of relevant statutory provisions concerning sexual harassment including remedies available to victims of harassment
A summary of the employers’ responsibilities for preventing, investigating, and correcting workplace harassment
But the changes to the IHRA are not limited to training. The new law also bans companies from requiring employees to sign confidentiality agreements and from enforcing mandatory arbitration agreements. It also changes how confidentiality agreements are handled and requires employers to report any adverse findings of workplace harassment to the Illinois Department of Human Rights. And the law extends sexual harassment protections to independent contractors and consultants, a move with significant ramifications for the growing gig economy.
Violating the law comes with serious consequences for employers. In addition to damaging your employer brand and workplace, you will face up to a $1,000 fine for the first offense and $5,000 fines for each subsequent violation.
How to Comply with the Sexual Harassment Training Requirements
How can you create an effective sexual harassment training program or modify your existing training to ensure compliance? The good news is that the best practices for bringing your training into compliance are also great ways to build a safer, more productive workplace.
Beyond the four bullet-points outlined in the previous section, it’s important to be as explicit and comprehensive as possible regarding what does and does not constitute workplace harassment, what employees can do to prevent and address harassment, what promises and obligations you have regarding workplace harassment including any and all official company policies, and what employees can and should do if they are harassed.
It can be especially useful to clarify who can be a harasser or harassed (pro-tip: it’s anyone) and to examine power dynamics and unconscious biases that can cause or worsen harassment. Outline specific best-practices for employees to prevent inadvertent workplace harassment and provide clear and helpful guidelines for reporting harassment.
When creating your training program, don’t overlook your managers. You do not want to end up in noncompliance, damage your company culture and employer brand, or lose valuable employees because a manager mishandles harassment on their team. Implement specialized manager training to educate your management team on their responsibilities to protect employees and take action to address workplace harassment, the liability that they can cause if they do not follow proper procedure, how to avoid harassment allegations against themselves, and what to do if a complaint is filed against them.
Other Workplace Harassment Compliance Considerations: Confidentiality Agreements and More
In addition to the training requirement, the new law makes significant changes to how employers can create and enforce confidentiality agreements and arbitration agreements. But while there are new limitations, these are still viable tools to protect your company and its brand. You just need to be more careful about how you use them.
For both types of agreements, the law is focused on making sure that the agreements are consensual. Specifically, confidentiality in a severance agreement or settlement is only valid if the employer takes extra steps to ensure that the employee enters the confidentiality agreement freely and fully informed. So, employees must be able to show the agreement to an attorney of their choice, have 21 days to decide whether or not to sign the agreement and be able to revoke their signature for 7 days after signing. So long as a confidentiality agreement meets those standards, it is valid under the new law. And while employees may subsequently report the unlawful harassment to a government agency, they may be required to wave monetary compensation as a result.
Arbitration agreements are similarly affected rather than prevented by the new law. Employers are no longer allowed to make hiring decisions contingent on signing the agreements and must take steps to make sure that they are consensual. But the requirements are even less stringent than for confidentiality agreements. If employers give employees a brief opt-out period, odds are the arbitration agreements will be considered valid under the new legislation.
Finally, employers should include contractors in their sexual harassment training and policies. It should be clear to employees, managers, and the contractors themselves that contractors are now protected by the law and by company policies.
Workplace Harassment Best Practices to Protect Your Brand and Culture
In addition to requiring companies to conduct sexual harassment training and report violations, and reducing companies’ ability to limit employees’ speech and methods of recourse, the new law makes it more important than ever to prevent and properly address workplace harassment. It represents and reinforces a culture that will not tolerate harassment in the workplace. That means that failing to properly handle any cases of harassment at your company or to foster a company culture that discourages harassment and encourages equality will hurt your ability to attract, engage, and retain the talent you need to succeed.
So, it’s important to do more than follow the letter of the law when it comes to the Workplace Transparency Act and the Illinois Human Rights Act. Unchecked workplace harassment can cause a toxic workplace culture that undermines your employer brand and decreases employee productivity, creativity, and diversity. And it’s not just your employer brand at stake – as companies like Uber, Guess, and Google can attest. If customers find out about workplace harassment at your company, you can see your corporate brand take a hit as well.
Beyond taking employee and manager training seriously, companies should establish firm and comprehensive guidelines for workplace harassment investigations and remedial action. Your employees should know that you are on their side and will take allegations seriously while also providing a fair and transparent evaluation process for those accused.
Once an employee reports workplace harassment, you should start a serious investigation at once, whether they request one or not. Interview both the accuser and accused, as well as any witnesses as necessary, and document all responses thoroughly. If the accused is in a position of power, take steps to keep them out of the decision-making process during the investigation and prevent them from taking retaliatory actions against the employee who made the allegations.
Depending on the results of your findings, it’s important to take prompt remedial actions. Even if you have not found evidence of true misconduct worthy of disciplinary action, you should address areas of concern to ensure that all employees are comfortable in the workplace. But whatever you do, do not transfer the accuser unless they explicitly ask to be transferred. Transfers are often seen as disciplinary or retaliatory towards the accuser.
When determining how to punish misconduct after concluding your investigations, it’s important to consider several factors, including:
Extent and severity of the misconduct
Relative positions of the harasser and complainant
Previous allegations or findings against the harasser
Requested punishment by the complainant and previous punishments for the same behavior
Creating a positive, inclusive culture can go a long way towards preventing incidences and allegations of harassment. But it is equally important to take any allegations seriously, establish standardized approaches towards handling cases when they come up, and to take swift and meaningful action.
Find Out More at Our Comprehensive Webinar
Few issues employers face are as nuanced and potentially damaging as sexual harassment. Especially in light of the new law and changing culture, it’s important to get every aspect of your workplace harassment policy and procedures exactly right. Needless to say, we can’t cover it all in one blog article.
That is why we are holding a free and informative webinar on March 31st to educate employers and HR professionals about how to ensure compliance in light of the new laws. Our first panelist is Heather Bailey, a partner at SmithAmundsen’s Labor and Employment Group and an expert in discrimination, employment, and labor lawsuits, negotiations, and mediation. Heather will be joined by Launchways’ own HR Client Manager and expert in all things human resources, Karina Castaneda.
Heather and Karina will outline how to create an effective and compliant training program and adapt to the other clauses of the Workplace Transparency Act. The presentation will be followed by an in-depth Q&A so Heather and Karina can help you address your specific challenges and concerns.
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
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.
HR practices and policies must evolve over time to reflect
emerging best practices, changes to regulations, and shifting cultural values.
Throughout the last decade, our shared understanding of what
the workplace looks and feels like has gone through significant alterations,
and as we near 2020, it’s a logical time for organizations of all sizes and
industries to reassess their HR policies and procedures.
With that said, many of HR’s biggest challenges are baked
into the nature of the work, but new technologies and innovative approaches are
turning those challenges into areas of new opportunity.
Moving forward, we’ll take a look at the biggest HR
challenges that growing businesses must have on their radar as we prepare for
the new year.
1.
Employee Performance
One of any HR department’s main responsibilities is creating
a team and an environment in which people can do great work. No human resources
department can operate at its highest level unless there’s a company-wide
awareness of expectations and accountability. As a business, you can’t correct,
reprimand, or discipline anybody with any real authority unless you’ve clearly
articulated goals, KPIs, and an evaluation framework that everybody knows and
cares about.
2.
Terminations
Getting termination right is just as important as getting hiring
right. The way you separate from former employees affects your reputation in
the talent marketplace and the morale of your remaining team.
If you don’t have a codified, iron-clad termination
procedure that’s been vetted by your legal team, you could be leaving your
organization open to potential lawsuits and fees. Regulations on termination
practice vary from state to state, so it’s important to be aware of your local
laws, especially if your organization has offices in various states.
The dialogue around planned employee leave has changed
tremendously in recent years. The aging population means that many professional
age workers are medical or legal custodians of older family members, and shifts
in parenting practices, mental health awareness, and beyond have an increasing number
of employees requesting time away from the office.
As the employer, you must be prepared for every conceivable
leave request and have policies in place that explain when and how much leave
is permitted, what process employees must go through for approval, and how their
return to the team will be arranged and executed. Any gap in your explicit
policies is a potential legal liability.
4.
Harassment Prevention, Training, and
Investigations
As we approach the fourth year of the #MeToo movement,
public and individual awareness of harassment has never been higher. That means
your prevention training procedures and reporting/investigation frameworks must
be stronger and more comprehensive than ever in order to provide the best
possible protection for you and your employees.
With that said, nothing is more important than
follow-through. If you have great policies on the books but don’t honor them,
you’re compromising your company vision and creating greater opportunity for
your organization to be hurt by legal disputes. If there’s one area of your HR
practice that you are targeting for improvement this year, make it your
harassment prevention, training, and investigation policies.
5.
Training for Managers
Team- and department-level leadership has the capacity to
build great engagement and motivation or send employees running for the door.
The best way to ensure the former happens (and to avoid the latter) is to
provide your management teams with consistent, explicit training on how to
approach coaching, mentoring, feedback, discipline, staffing, etc.
Managers in even the best organizations – especially
fast-growing ones – often have gaps in their knowledge of new employee management
strategies and best practices. That’s because many of them were promoted into
their positions for being all-star workers. While they still have the knowledge
and perspective that they showed off in that role, they don’t have the same
degree of experience and preparation regarding management responsibilities. By
providing them with impactful training, you build your management team into
more valuable leaders.
6.
PTO/Sick/Vacation Policies
One of the biggest mistakes organizations make is not clearly
articulating how different absences from work should be planned, coded, and
compensated. Depending on the state where your business is located, there may
be specific definitions of “Paid Time Off” versus “Sick Time” versus “Vacation
Time” that you must obey.
Policies must clearly establish a rate of PTO/sick
day/vacation time accrual, procedures and appropriate contacts for approval,
carry-over maximums, buy-back maximums, and so on. Remember, if you leave any
of those considerations out in your official policies, you can be subject to a
substantial legal penalty.
7.
Attendance
We’ve already discussed employee leave and PTO, but in
addition to those policies, every organization should have clear expectations
regarding employee attendance on record. Procedures should exist for
maintaining appropriate communication about attendance and building dialogue
around excessive absences with an eye towards creating a rich, clear
documentation trail for future discipline, termination, etc.
Of course, your exact framework must be dictated by the way you
track attendance. Policies must exist to explain expectations for both hourly
workers who have a timecard as well as salaried employees, temporary workers,
contractors, etc. The better a job you do articulating expectations, the better
you can do holding people accountable, keeping them at their desks, and
removing team members whose absenteeism affects overall team performance.
8.
Reimbursement Policies
Many states have recently added or changed legislation about
reimbursement of business expenses. As 2020 approaches, it’s crucially
important that you review your local regulations to double-check that your
employee reimbursement policy is up to date.
Your policies need to explain which expenses are
reimbursable, what documentation and forms are required for reimbursement
application, how applications for reimbursement will be approved, and how
reimbursement will be delivered to the employee. The entire program must be
spelled out in specifics, or you risk noncompliance.
9.
Legalization of Marijuana
State laws surrounding the use of cannabis have shifted en
masse over the last decade, and many jurisdictions now allow for legal medical
and recreational use. With that said, marijuana is still illegal at the federal
level, and as an employer, you need to understand how that could potentially
affect your business and employees who use cannabis.
As state and federal marijuana policy continues to evolve
and take shape, you must articulate a clear company policy for today and start
proactive planning about what tomorrow’s policy might look like, depending on
the results of elections and general direction of the culture.
10. ADA
Amendments Act (ADAA) Compliance
The Americans with Disabilities Act was a monumental piece
of legislation when it was passed into law in 1990s, and its scope and
complexity only grew with the ADA Amendments Act of 2008. As we near 2020 and
our understanding of “disability” continues to evolve, it’s crucial that every
corporate organization in America has a specific plan and support framework in
place to ensure compliance.
Of course, compliance isn’t just about workplace
accessibility; it’s about inclusion and providing team members with services to
ensure their needs are met. If you don’t have official policies describing how
employee needs will be assessed and met on a continuing basis, you’re only
halfway there. At the same time, it’s important to remember how employee leave,
absenteeism, and disability can all be interconnected, which means your
disability policy must account for leave and vice versa.
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].
