Illinois’ Cannabis Regulation and Tax Act legalizes recreational marijuana, effective January 1, 2020. Accordingly, Illinois employers may need to adjust their drug policies to remain in compliance with this and other applicable laws. This is because marijuana will soon be considered a lawful product under the Illinois Right to Privacy in the Workplace Act, meaning employers cannot take disciplinary action against employees for using marijuana off-duty and off-premises. Because marijuana remains in a person’s system for an extended period after use, a drug test may not accurately demonstrate if an employee is actually under the influence or impaired by marijuana at work, or if he or she simply partook in legal, off-duty conduct in the recent past.
Whereas employers previously could enforce a zero tolerance drug policy, regardless of whether or not an employee was impaired at work, under the new law, employers can only discipline and/or terminate an employee if he or she is impaired by marijuana at work. This means employers must have a good faith belief that the employee “manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including 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.”
Although the new law doesn’t explicitly prohibit pre-employment or random testing for marijuana, practically speaking, results will not be tied to any evidence of actual impairment, likely rendering the results unusable. Note, however, that the new law does not impact testing that is otherwise required by some other federal or state law.
Illinois employers should review and revise their drug policies as appropriate to prohibit impairment while on the job, as well as the possession of marijuana on premises. Employers should also ensure that supervisors are properly trained to identify and document specific, articulable symptoms of impairment.
This blog article is intended for general informational purposes only and should not be construed as legal advice or opinion. Contact myHRcounsel with questions concerning specific facts and circumstances.