Legalization of Recreational Marijuana Use – Employer Impact

On June 25, 2019, Governor Pritzker signed into law the Cannabis Regulation and Taxation Act, which will legalize the recreational use of marijuana in Illinois by individuals 21 years old or older as of January 1, 2020. While the Act may be a cause for celebration for many, it likely is a cause of concern for employers, as it further complicates the already complex landscape of substance use and abuse by employees. It is imperative that employers consult with their legal advisors to identify these concerns and make the necessary changes to their substance abuse policies.

Zero Tolerance Workplace Policies Still Permitted

Most importantly, the Act does not require employers to allow employees be under the influence of or use marijuana in the workplace, while performing job duties outside the workplace, or while on call. Specifically, it permits employers to adopt reasonable zero tolerance policies, provided that they are applied in a nondiscriminatory manner.

Disciplining Employees for Violations

It is clear that employers generally remain free to terminate or otherwise discipline employees who violate workplace drug policies. However, before disciplining an employee for appearing to be impaired by marijuana while at work, the employer must have “good faith belief” that the individual is impaired. What constitutes a “good faith belief” likely will be a much-debated issue. This standard has been compared to, but is a slightly lower bar than, “reasonable suspicion,” which is required before a police officer can stop and question an individual.

If an employer does elect to discipline an employee on the belief that the employee is under the influence of or impaired by marijuana while at work, the employer must afford the employee a “reasonable opportunity” to contest that determination. Unfortunately for employers, the Act does not make clear what constitutes a reasonable opportunity.

For these reasons, and the relative difficulty in objectively testing marijuana impairment as compared to alcohol impairment, employers should exercise caution and careful judgment when they suspect an employee of being under the influence of marijuana.

Discrimination Based on Lawful Use Prohibited

Providing further protections to employees, the Act amends the Illinois Right to Privacy in the Workplace Act to make clear that marijuana is treated as a “lawful product” under that law. This means that under the Right to Privacy Act, employers (with exceptions for certain federal contractors and non-profit organizations) are prohibited from discriminating against applicants and employees who use marijuana off premises, during non-working and non-call hours. This change may render drug tests useless to employers except where a good faith belief of impairment exists, as employees who admittedly use marijuana outside of work on a consistent basis generally will test positive for marijuana use. Without actual proof of impairment at work, it will be difficult for employers to discipline these employees.

Given this change, employers should review their drug-testing policies with counsel and update them as necessary prior to the Act’s January 1, 2020 effective date.

If you would like more information about this new law and how to prepare for the complications that are sure to arise in the workplace, contact Joshua Nesser at 312-888-4113 or jnesser@lavellelaw.com. Having an up-to-date employee handbook before the new law takes effect is key to maintaining a compliant workplace.