Last week, the Illinois legislature passed a landmark bill authorizing recreational marijuana. Shortly thereafter, Governor J.B. Pritzker tweeted that he looks forward to signing the bill into law. The bill, formally known as the Cannabis Regulation and Tax Act (the "Act"), will make it legal under state law for adults 21 and older to purchase and possess limited amounts of cannabis, beginning on January 1, 2020. As with the majority of state cannabis legislation, this bill also contains specific language that Illinois employers should review in order to understand their obligations under the new law.
While the legalization and regulation of cannabis may be a boon to the state's (depleted) piggybank, it has the potential to create headaches for Illinois employers, especially those who have adopted policies relating to employee drug use.
The Act allows employers to continue enforcing zero tolerance or drug free workplace policies, as well as policies concerning drug testing. However, the new law also amends the Illinois Right to Privacy Act, which prohibits employers from taking an adverse employment action against an employee who uses "lawful products" off premises during nonworking hours. As a result, starting next year, employers can no longer refuse to hire a candidate, or discipline an employee, due solely to a positive test for cannabis, whether such positive test was caused by the medicinal or recreational use of marijuana.
Under the Act, employers who believe that an employee is under the influence of cannabis will have the burden of identifying articulable symptoms of impairment in order to establish a "reasonable suspicion," and those symptoms must adversely affect the employee's performance. The Act lists several specific symptoms of impairment, such as speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery, disruption of a production or manufacturing process, or carelessness that results in an injury.
Moreover, if an employer chooses to discipline an employee suspected of being under the influence of cannabis, it must afford the employee a reasonable opportunity to contest the basis of that determination. Despite this new procedural requirement, the Act states that it does not create a cause of action against an employer who disciplines or discharges an employee based on a "good faith" belief that the employee was impaired at work. Thus, it remains unclear whether an employee has any means to enforce the "reasonable opportunity" provision.
The anti-discrimination provision of the new law will have a significant effect on employers who issue routine or random drug tests. Since drug tests can only tell whether someone has used cannabis in the past (time frames vary between one day and 90 days depending on the type of test), and not necessarily whether they are currently under the influence, any disciplinary action issued based solely on a positive drug test could run afoul the anti-discrimination clause, if the legal drug use occurred off premises, during non-working hours.
As Illinois prepares to become the 11th state to authorize adult use marijuana, employers should be aware of these new rules and adjust their practices accordingly. Before any discipline is issued under a drug free workplace policy, employers should ensure that they identify the specific symptoms of impairment and describe the opportunity given to the employee to rebut the determination. Likewise, current policies should be updated to reflect these new requirements.
To read about other provisions in the Illinois' Cannabis Regulation and Tax Act, click here. Should you have any questions or if you would like to discuss how this new bill will impact your company, please contact your regular Saul Ewing Arnstein & Lehr LLP labor and employment attorney.