As of June 25, 2019, Illinois became the 11th state to legalize recreational marijuana, implementing the Cannabis Regulation and Tax Act (the Act) which legalizes recreational marijuana use for persons aged 21 and older and implements a tax, sales, and regulatory system. For employers, the Act includes provisions that will likely require an update to their workplace drug testing policies before the bill goes into effect on January 1, 2020.
Unlike other recreational marijuana laws, the language in the law is not as employer-friendly and makes it difficult to establish and enforce drug testing compliance policies in accordance with the law.
Out of all the recreational marijuana laws that have been passed state-by-state, Maine and Illinois remain the only two states that do not provide complete protection for employers creating their drug-free workplace policies, as they require some level of accommodation for recreational marijuana users in the workplace. Employers will be required to make certain changes to their drug-free workplace policies to be compliant.
Employers still have the right to drug test but must pay close attention to the law when it comes to employment actions or termination. The Act also states that nothing in it prohibits an employer from adopting a reasonable zero tolerance or drug-free workplace policy. Additionally, nothing in the Act prohibits an employer from having a policy that addresses drug testing, smoking marijuana, marijuana consumption, or marijuana storage in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.
Employers are not required to accommodate an employee being under the influence or an employee using marijuana in the workplace, while performing job duties, or when on call. Employers retain their rights to discipline or terminate an employee for the violation of employment policies or the company drug-free workplace policy.
The Act provides strict symptoms for determining if an employee is under the influence, which does not stipulate whether or not a drug test can or cannot prove this.
The following criteria for determining such impairment is outlined in detail below:
Most recreational marijuana laws feature safety-sensitive carve-outs, but Illinois doesn’t. The only language that relates to those in safety-sensitive positions states that employers must defer to federal regulations and/or state laws. DOT-regulated employers would be exempt, as would employers in industries with industry-specific laws, such as public works or police officers if the laws have provisions that are contrary to what the Illinois law states.
Under the Act, the employee must be given a reasonable opportunity to rebut any determination that they were under the influence or impaired. Employers may not discharge or otherwise disadvantage an employee, in terms of compensation, terms, conditions, or employment privileges, because the employee uses lawful products during nonworking and non-call hours. This does not apply to an employee who uses lawful products and impairs their ability to work, which poses challenges for employers who attempt to prove that a marijuana-positive drug test correlates with their impairment on the job.
A clear and concise written drug testing policy is pertinent for employers, especially when dealing with complex, recreational marijuana state laws.
“Employers need to take the time to carefully review company policies with their legal counsel prior to the deadline of their state laws. Clearly defining rules and repercussions of impairment, or under the influence in the workplace follows industry best practices and protects your employees, as well as your company.”
– Frank Bernard, VP of Compliance at DISA Global Solutions
In addition, employees should train and implement reasonable suspicion drug testing policies and procedures. Reasonable suspicion allows an employer to perform a drug test if there is evidence or cause to suspect an employee of drug use. Such evidence is based on direct observation, either by a supervisor or another employee and under this particular Illinois law, must meet the specific impairment criteria set forth in the Act itself. As a best practice, Illinois employers should combine a positive drug test result with one of the signs of under the influence that the law describes.
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