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Illinois Recreational Cannabis Law Is Raising Many Questions for Employers

Over the last month, nearly half the calls I receive are about Illinois's new recreational cannabis law which takes effect on January 1, 2020. Employers have many questions about the new law. Below are some of the most commonly asked questions that I have received.

QUESTION No. 1: When does the new law go into effect?

ANSWER: January 1, 2020

QUESTION No. 2: We are a company located on the border of Illinois (but not in Illinois) - will the new law have any consequences for our company?

ANSWER: No, if your company is, for example, located in Iowa, where there is not a law allowing recreational marijuana, your company will not need to revise any of its policies and/or procedures. Companies who have operations near the Illinois border should be aware that they may receive more positive drug test results, but they can be handled the same way they were handled prior to Illinois's new law taking effect.

QUESTION No. 3: Can Illinois employers prohibit its employees from being impaired at work?

ANSWER: Yes. No employer shall be required to permit an employee to be under the influence of or use cannabis in the employers' workplace or while performing their duties. Employers can discipline or terminate an employee if the employee violates the employer's policies. Employers can discipline an employee if the employee is impaired at work.

The new law states that an employer, who shows good faith belief that the employee is impaired by or under the influence of cannabis, can take disciplinary measures. Employers can demonstrate their good faith belief that the employee is under the influence by:

a. Employee's speech, physical dexterity, agility, coordination, demeanor, rational, unusual behavior or negligence or carelessness in operating equipment or machinery, or;

b. 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;

c. Disruption of production or manufacturing processes, or carelessness that results in an injury to the involved employee or to others.

Employers should also remember before they discipline an employee "under the influence or impaired by cannabis," the employer must provide the employee a reasonable opportunity to contest the employment decision.

QUESTION No. 4: If we see the employee the night before smoking marijuana outside the workplace, can we terminate the employee?

ANSWER: No. This would be the same as seeing someone drinking or getting drunk outside the workplace. If the next day (at work) the employee is impaired or under the influence as described above, then yes, the employer can start the disciplinary process for being under the influence/impaired. However, if the employee shows up to work the next day and shows no sign of impairment, then no, the employee should not be disciplined.

The Cannabis Regulation and Tax Act ("CRTA") will amend Illinois's Right to Privacy in the Workplace Act, which prevents employers from disciplining or discharging employees for using "lawful products off the premises of the employer during nonworking hours." The CRTA will define the previously undefined phrase "lawful products" to mean "products that are legal under state law." This is a noteworthy change because marijuana is still illegal at the federal level.

By defining "lawful products" to mean those produces that are legal at a state level, the CRTA appears to prevent employers from disciplining or discharging employees for recreationally consuming marijuana during off-duty hours. However, federally regulated employers, such as those subject to federal DOT regulation, are carved out from this exemption.

QUESTION No. 5: Can the employer prohibit employees from using marijuana while they are on-call?

ANSWER: Yes. The new Illinois law explicitly provides:

Nothing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.

Nothing in this Act shall require an employer to permit an employee to be under the influence of or use cannabis in the employer's workplace or while performing the employee's job duties or while on call.

For purposes of this Section, an employee is deemed "on call" when such employee is scheduled with at least 24 hours' notice by his or her employer to be on standby or otherwise responsible for performing tasks related to his or her employment either at the employer's premises or other previously designated location by his or her employer or supervisor to perform a work-related task.

QUESTION No. 6: When we make an offer of employment, the offer is contingent on passing a drug screen and we currently test for marijuana. Should we remove marijuana from our pre-employment drug test as of 1/1/20 since it is now legal? And if the applicant tests positive, does it matter since they are not currently employed with us?

ANSWER: Numerous drug testing companies deny requests to remove cannabis from a pre-employment drug screen and/or results provided to the client because it would be more work for them to deviate from their standard procedure. That being said, I would ask for marijuana to be removed from the pre-employment drug screen because the information could only harm the employer (e.g., the applicant could claim the offer was withdrawn for testing positive even if the employer had a legitimate nondiscriminatory reason other than the drug test to pull the offer of employment).

Employers are encouraged to review their policies and procedures before the new law goes into effect and to train their supervisors regarding the effects of the new law and the signs of an employee being under the influence of cannabis.

If you have any questions regarding these issues, please contact Joseph Laverty at [email protected] or (563) 333-9102.

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