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Dazed and Confused: Employers Prepare for Recreational Marijuana in Illinois as of 2020

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Dazed and Confused: Employers Prepare for Recreational Marijuana in Illinois as of 2020

With the passage of the Cannabis Regulation and Tax Act, Illinois becomes the 11th state to legalize the recreational use of marijuana. As such, Illinois employers must now grapple with the new law’s potential impact on their employees and operations before the law becomes effective on January 1, 2020.

What does the Act allow?

The Act allows a person over the age of 21 to possess up to 30 grams of cannabis flower, up to 500 milligrams of THC in a cannabis-infused product, or five grams of cannabis concentrate. Registered qualified patients under the Compassionate Use of Medical Cannabis Pilot Program Act may cultivate up to five cannabis plants in their home, provided the plants do not leave their home.

What obligations does the Act place on employers?

Employers will retain fairly wide latitude in maintaining a drug-free workplace under the Act but should be careful about applying any of its drug policies in a discriminatory manner. The Act specifically allows employers to adopt reasonable “zero tolerance” or drug-free workplace policies, and employers covered by the federal Drug-Free Workplace Act are required to have such policies. Further, the Act allows employers to discipline or terminate employees for being under the influence of marijuana at work or violating the employers’ drug policy.

Notably, the Act provides that an employer can consider an employee impaired, and therefore discipline or terminate an employee, if the employer has a good faith belief that the employee manifests symptoms that decrease or lessen the employee’s performance. The Act provides guidance to employers in determining whether an employee is impaired by or under the influence of cannabis while working. Specifically, an employer can meet this showing if it has a good faith belief that an employee manifests specific and articulable symptoms while working that decrease or lessen the employee’s job performance, including, but not limited to:

  • symptoms of the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery;
  • disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property;
  • disruption of a production or manufacturing process; or
  • carelessness that results in any injury to the employee or others.

If the employer chooses to discipline an employee for being under the influence, however, it must provide the employee a reasonable opportunity to contest the basis of the determination.

Importantly, is the Act does not provide a private right of action against an employer for (1) subjecting an employee to a drug test under the employer’s drug policy, (2) disciplining an employee for an employer’s good faith belief that the employee was impaired, or (3) injury, loss, or liability to a third party if the employer neither knew nor had reason to know that the employee was impaired. 

Finally, the Act amends the Right to Privacy in the Workplace Act to designate recreational cannabis used in compliance with the Act as a “lawful product” subject to the protections against discrimination provided in the privacy law. This means that an employee who lawfully uses cannabis outside of work and is not impaired by or under the influence of cannabis during working hours (while on duty or while on-call) should generally not be subject to adverse employment action on that basis alone.

What steps should employers take?

  • Employers should establish or re-distribute any “zero-tolerance” or other substance abuse policy so that employees understand that any impairment and/or usage on the job could lead to discipline or termination.
  • Employers should train supervisors on signs of impairment to support any “good faith belief” termination under the Act.
  • Employers should be trained to document all signs of impairment, including any violations of occupational safety rules.

Under the new Illinois marijuana law, employers will have to balance the objectives of the Act with practical employment decisions. Employers should continue to monitor any regulations and case law interpreting the Act to accommodate its policies accordingly. To best navigate through their rights under the Act, employers should confer with counsel about their objectives, their policy language, and even critical decisions made with respect to suspected employee noncompliance.