- Jul 17, 2019
While the new Illinois cannabis law allows for personal recreational use of marijuana beginning January 1, it also provides explicit protections for employers who want to preserve drug-free workplaces. Employers are allowed to maintain zero tolerance or drug-free workplace policies, as well as other policies concerning drug tests, smoking, consumption, storage or use or marijuana in the workplace, and may discipline or terminate employees for violating those policies. The challenge is determining when an employee is actually impaired on the job.
Employers may take action against employees who appear to be under the influence at work, if the employer possesses a good faith belief that the person “manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance.” These policies may apply to employees who are on duty or have received 24 hours notice to be on call. The law spells out symptoms that may support an employer’s good faith belief, such as changes in coordination, speech, dexterity, or demeanor; unusual or irrational behavior; negligence or carelessness in operating equipment; disregard for safety; a disruption in production; or carelessness that results in injury.
“The takeaway here is, if you already have a policy in place you need to review it and make sure it addresses cannabis, and if you don’t have one, you need to create one – especially if your business involves something like construction or operating heavy machinery,” explains attorney Claudette Miller, Reyes Kurson Ltd. “The law allows an employer to adopt a zero tolerance or drug free workplace policy – provided that the policy is reasonable and applied in a non-discriminatory manner.”
Off-duty use is a different matter. The Illinois cannabis law amends the state’s Right to Privacy in the Workplace Act to prohibit employers from disciplining employees for lawfully using marijuana products outside of work. Keep in mind that current drug testing technology may reveal off-duty use by an employee who is not actually impaired at work. The Privacy in the Workplace Act carries expensive penalties for employers who violate it. Employers should develop clear policies on use within the workplace and train managers to enforce those policies in an evidence-based, non-discriminatory process.