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Recreational Cannabis Law-Beware Of Pitfalls

On May 31, 2019, the State of Illinois approved House Bill 1438 which created the "Cannabis Regulation and Tax Act". This Bill was signed, with a lot of "fanfare and publicity," by Governor Pritzker on June 24, 2019. The Act provides that, effective January 1, 2020, Illinois Residents who are 21 years of age or older may legally possess up to thirty (30) grams of cannabis flower; no more than 500 milligrams of THC contained in cannabis infused products and five (5) grams of cannabis concentrate. Non-Illinois residents will be able to legally possess fifteen (15) grams of cannabis flower; no more than 250 milligrams of THC and cannabis-infused products and 2.5 grams of cannabis concentrate (i.e., one-half of that Illinois available residents). Any and all permitted cannabis purchases must be made from licensed cannabis dispensaries. Obviously, the House Bill also provided substantial tax incentives to be taken on the above purchases and, in the opinion of the author, that is the major or principal reason that this legislation has been passed.

While legalization of recreational cannabis will be effective January 1, 2020, there are some protections for Employers in the specific provisions of Section 10-50:

  1. The Act is not to be construed as prohibiting an Employer from adopting reasonable zero tolerance or drug-free workplace policies, or
  2. Employment Policies concerning drug testing, smoking, consumption, storage or use of cannabis in the workplace or while on call are up to the Employer as long as the Employer policies are applied in an "non-discriminatory manner".

No Employer shall be required to permit an Employee to be under the influence of or use of cannabis in the Employer's workplace or while performing their duties. Employers also retain the right to discipline or terminate an Employee if they violate the Employer's Policies.

The Act does provide guidance to Employers in determining whether an Employee is impaired by or under the influence of cannabis while working. The Employer must show a "good faith belief" that the Employee is under the influence of cannabis by establishing the following:

  1. Symptoms of Employee's speech, physical dexterity, agility, coordination, demeanor, rational, unusual behavior or negligence or carelessness in operating equipment or machinery, or
  2. Disregard for the safety of the Employee or others or the involvement in an accident which results in serious damage to property or equipment, or
  3. Disruption of production or manufacturing processes, or carelessness that results in an injury to the involved Employee or to others.

While the Act does not regulate drug testing, it should be clearly understood that cannabis may remain in the person's system for a few weeks after use. The fact that an Employee tests positive for cannabis does not, in and itself, grant the Employer the right to invoke discipline without establishing other specific and particular symptoms that the Employee was under the influence of cannabis.

While the Act does not create an Employee's private right of action against an Employer for subjecting an Employee to reasonable drug and alcohol testing nor for disciplining an Employee for the Employer's good faith belief that the Employee used, possess or was impaired by the use of cannabis, the Act does not allow an Employer to discipline an Employee who is under the "influence or impaired by cannabis" without providing to that Employee "a reasonable opportunity to contest that employment decision. Obviously what will be defined as "a reasonable opportunity to contest" will be subject to interpretation and probable Court decision. It should also be clearly understood that the interplay with the Illinois Right to Privacy in the Workplace Act (820 ILCS 55) will also impact this Act and because an Employee who lawfully used cannabis outside the workplace (i.e., like an Employee who was out "drinking the night before") and is not impaired, would not be subject to adverse employment action on that basis alone. This being the case, Employers should carefully consider whether to test for cannabis in pre-employment situations where applicants are not, in fact, Employees. With regard to drug tests during actual employment situations (i.e., reasonable suspicion and post-accident testing), the Employer should have additional facts or circumstances that establish impairment rather than testing in and of itself.

Employers must be in a situation to document and substantiate all signs and evidence of impairment including violation of safety rules. It will be delicate balancing act in establishing compliance with Employer's Drug Policy requirements while establishing that the Drug Policy is applied in a non-discriminatory and fair manner.

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at [email protected].

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