If you’re approaching Illinois, you might hear the sound of residents blaring their favorite Bob Marley tunes. That’s because Illinois just legalized recreational use of marijuana. This new law could leave Illinois employers dazed and confused in trying to figure out how to make sure their employees aren’t stoned on the job. Dylan rightly said “you don’t need a weatherman to know which way the wind blows.” But, as with most things in the law and technology, it’s not that simple. Far from it, in fact, given the state of today’s drug-testing technology…it doesn’t indicate when exactly someone puffed the magic dragon.
A sampling to put this in context: Colorado and Washington became the first states to legalize recreational use in 2012; Oregon and Alaska did so in 2014; California, Maine, Massachusetts and Nevada followed suit in 2016; and Vermont went in the same direction in 2018.
Illinois boarded the magic bus this year. On June 25, Governor Pritzker signed into effect the Cannabis Regulation and Tax Act, which will take effect on January 1, 2020. This new law protects employees’ right to use marijuana during off-duty hours. It amends the Illinois Right to Privacy in the Workplace Act, which prevents employers from disciplining or discharging employees for using “lawful products” off the workplace premises during nonworking hours. The amendment cuts through the fog by defining the phrase “lawful products” to mean products that are legal under state law, which is particularly noteworthy because cannabis use remains illegal under federal law.
But what about federal law and state laws that strictly require employees to keep off the grass? Illinois employers may continue using drug testing that federal or state laws require, and also may continue to use their existing policies in order to maintain federal contracts.
Further, the new law provides that Illinois employers may use 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 non-discriminatory manner.
But here’s the question: how can an employer police its workforce to ensure employees are sober on the job? Current drug tests are not accurate enough to determine if someone was actually under the influence of marijuana during working hours. Indeed, it’s reported that pot may appear on a drug screen up to 30 days after it has been used (depending upon factors such as how much body fat a person has, how often he or she consumes it, how much one smokes and the sensitivity of the test).
So, there’s a risk that an employee who fails a drug screen on Monday will claim he or she had used marijuana on Sunday (or well before) and that the drug screen didn’t flag on-duty usage.
The new law empowers employers to consider an employee to be under the influence of cannabis if they have a “good-faith belief” that the employee manifests specific, articulable symptoms that decrease or lessen the employee’s performance. It lists the following symptoms:
- impairment of speech, physical dexterity, agility, coordination;
- unusual behavior or demeanor;
- negligence or carelessness in operating equipment or machinery;
- disregard of the employee’s own safety or the safety of others;
- 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.
The law doesn’t indicate the quantum of proof that’s required. And notice that it makes no mention of whether an employee has glossy eyes, smells of marijuana or has paraphernalia.
If any of these symptoms are present, an employee must be given a reasonable opportunity to contest the basis of the employer’s good-faith belief of impairment due to marijuana. But what’s a “reasonable opportunity?” Should an employee be permitted to submit a written explanation of her behavior? Should she be allowed to tell her side of the story to human resources? Should she be allowed to call in witnesses? What about calling in a medical professional? What other kind of evidence should she be allowed to present?
And what happens next? Consider a situation where an employee claims he had impaired physical coordination or speech because he was up all night dealing with a family emergency or suffering from a stomach flu or some other difficult-to-pin-down physical condition. And consider a situation where an employee claims his manager’s subjective determinations were out to lunch or driven by animus or an ulterior motive. Open issues.
What should Illinois employers do?
As an initial matter, studies show that most employers are ill-prepared for new laws legalizing recreational use of cannabis. For example, a June 2019 study by Paychex found that “business owners are slightly more prepared to manage legalized medical use than recreational use:
- Legalized medical use
- 42% – very prepared
- 24% – somewhat prepared
- 34% – not prepared
- Legalized recreational use
- 39% – very prepared
- 23% – somewhat prepared
- 38% – not prepared”
Some of these questions might be addressed by forthcoming regulations implementing the statute. In the meantime, employers should proceed with caution and consider:
- training managers to recognize the symptoms of marijuana use;
- directing managers to document all facts supporting their good-faith belief that an employee was under the influence during work hours;
- developing a procedure that provides employees with a reasonable opportunity to show they were not under the influence during work hours;
- updating policies to reflect the new law; and
- communicating to the workforce that on-the-job marijuana remains a terminable offense and will be strictly policed.
Now is the time for employers to get in front of this new law.