It is a snowy January day in Chicago, recreational marijuana is now legal, and one of your employee’s, Mary Jane, is sleeping at her...

It is a snowy January day in Chicago, recreational marijuana is now legal, and one of your employee’s, Mary Jane, is sleeping at her desk, with a strong scent of marijuana emitting from her sweater. How can an Illinois employer prepare to address Mary Jane’s conduct this January?

The Illinois Cannabis Regulation and Tax Act (the “Cannabis Act”) dedicates an entire section, Section 10-50, to things that employers can do under the Cannabis Act to protect itself and address an employee’s at work impairment, including:   

  • An employer may still have “reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis on the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.”
  • An employer can still discipline or terminate an employee for violating an employer’s workplace drug policy or employment policies.
  • An employer can discipline an employee based on a good faith belief that an employee is under the influence or impaired. The Cannabis Act identifies a number of symptoms an employer can consider to support its good faith belief of impairment. However, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

Using the express protections set forth in Section 10-50 as a guide, employers can consider the following action items to prepare for the effective date of the Cannabis Act and build support to take a cannabis based disciplinary action against Mary Jane.

First, the Cannabis Act highlights the importance of Illinois employers having a written workplace drug policy in place as of the effective date of the Cannabis Act. Companies without a policy will find it more difficult to defend against a claim of violation of the Illinois Right to Privacy in the Workplace Act (the “Right to Privacy Act”), should the company want to take action against an employee suspected of drug use on the job.

The Cannabis Act amends the Right to Privacy Act, which prohibits employers from restricting employee use of “lawful products” away from work, by incorporating employer workplace protections set forth in Section 10-50 of the Cannabis Act as exceptions to the Right to Privacy Act. The proper interpretation of this amendment to the Right to Privacy Act should be that even if an employee ingests marijuana legally in Illinois while off-duty, but the employer has a drug-free workplace policy and an employee tests positive for marijuana in her system, the Cannabis Act should allow an employer to terminate that employee without violating the law.  Indeed, during debate on the bill, a sponsor of the Cannabis Act acknowledged that the purpose of incorporating Section 10-50 of the Cannabis Act as an exception to the Right to Privacy Act was to allow employers who provide a zero tolerance or drug free workplace policy to implement and enforce their policy without fear of violating the Right to Privacy Act. Companies without workplace drug policies in place will be unable to rely on a violation of company policy as a reason for disciplinary action, but instead may be limited to disciplining the employee for having a “good faith belief” that the employee was impaired or under the influence at work.

Second, an employer seeking to take disciplinary action based on a “good faith belief” that an employee is impaired or under the influence on the job must provide the employee with a reasonable opportunity to contest the basis of the determination.  As evidence that a reasonable opportunity was provided, employers should establish a written procedure for employees to be able to contest a cannabis-based disciplinary determination and communicate this procedure to its employees.   

Third, employers should train supervisors on marijuana-related impairment signs and procedures to follow as a result. The Cannabis Act provides specific symptoms to look for when making a determination that an employee is “impaired” or “under the influence” of marijuana. The symptoms include the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment or machinery, disregard for the employee’s own safety or the safety of others, involvement in any accident resulting in serious damage to equipment or property, disruption of a production or manufacturing process, and carelessness that results in any injury to the employee or others. Supervisors should be trained on how to recognize, properly document and promptly report the signs of impairment due to suspected marijuana use. This training will be very helpful in establishing that an employer had a “good faith belief” that Mary Jane was impaired on the job and therefore that discipline was warranted and lawful.  This training should also include reminders that company policy must be applied in a nondiscriminatory manner. 

Fourth, employers should review and update their reasonable accommodation policies, as employers may need to engage in an interactive process and make an effort to accommodate an employee’s off-duty use of medical marijuana. Recent rulings in federal and state courts outside of Illinois have found that the use of medical marijuana may be a reasonable accommodation under the state’s anti-discrimination statute for an employee, when the use is outside of working hours and does not adversely affect safety or job performance. Illinois previously enacted the Compassionate Use of Medical Cannabis Pilot Program Act and the Opioid Alternative Pilot Program, both of which allow patients diagnosed with specified medical conditions to possess and use medical marijuana. Section 10-50 of the Cannabis Act specificallystates that nothing in the Act shall be construed to diminish protection afforded by the Compassionate Use of Medical Cannabis Pilot Program Act or the Opioid Alternative Pilot Program. Thus, if Mary Jane contests her employer’s impairment determination by informing her manager that she has a medical marijuana card for her Crohn’s disease, her employer may need to engage in the interactive process with Mary Jane, prior to taking a disciplinary action.

In sum, an Illinois employer seeking to protect a cannabis-based disciplinary action should do what a reasonable employer should do under the Cannabis Act. That is, promulgate a reasonable workplace drug policy, enforce it in a non-discriminatory manner, train its staff, maintain an effective system for employees to contest a cannabis-based impairment decision, and communicate these policies to its employees.

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