Expected Legalization of Recreational Marijuana Use in Illinois Creates Complexity for Employers

Illinois is expected to become the 11th state to allow recreational marijuana use after the House approved the Cannabis Regulation and Tax Act (the Act) on Friday, May 31, 2019.

Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Washington, Vermont and the District of Columbia all have recreational marijuana laws but Illinois is the first state to legalize recreational marijuana through the legislature as opposed to voter referendum. Governor J.B. Pritzker has stated he will sign the Act.

What the Bill Allows

The Act quickly takes effect on January 1, 2020 and would allow residents ages 21 and older to legally possess 30 grams of cannabis, five grams of cannabis concentrate or 500 milligrams of THC contained in a cannabis-infused product. Nonresidents could possess 15 grams of cannabis.

How Employers Are Impacted

The Act allows employers to enforce a “zero tolerance” policy for cannabis in the workplace and explicitly states that it does not require an employer to permit an employee to be under the influence of cannabis in the workplace or while performing job duties while on call.

The challenge for employers will be in identifying when employees are “under the influence of cannabis” at work. According to the Act, an employer may consider an employee to be “impaired” or under the influence of cannabis if the employer has a “good faith belief” that an 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.
• Demonstrates a disregard for the safety of oneself or others, or involvement in any accident that results in serious damage to equipment or property.
• Creates disruption of a production or manufacturing process or carelessness that results in any injury to the employee or others.

As the Act’s identification of “impairment” makes evident, employers will need to focus on identifying the subject employee’s objective manifestation of “impairment” – including such physical characteristics as impacted speech, altered coordination or decreased coordination, or behavior that has an impact on the safety or operations of the workplace. Being able to identify objective manifestations of “impairment” will be critical to employers demonstrating a “good faith belief” of impairment if the discipline is issued and subsequently challenged.

In the event an employer decides to discipline an employee for cannabis use in the workplace, the Act requires that the employer afford the employee a reasonable opportunity to contest the basis of the determination. The employer may then make a final determination on whether to issue discipline once the employee provides an explanation, but the employer must still have a “good faith belief” that the employee reported to work under the influence of cannabis if the employer decides to discipline.

Employers may be challenged in enforcing their policies because cannabis is detected in a person long after the consuming individual is impacted by the substance, which makes drug testing an unreliable mechanism for detecting inappropriate cannabis use for current employees.

Accordingly, it is imperative that supervisors be trained on (1) recognizing impairment and (2) how to report and document an employee’s perceived impairment. Employers also must thoroughly review the documentation supporting any considered discipline to ensure that the documentation makes clear the employee manifested objective indications that he or she reported to work under the influence of cannabis.

Employers also must be careful in taking adverse action against employees or potential employees who are known marijuana users, but have not reported to work under the influence of cannabis: The Illinois Right to Privacy Act (which prohibits employers from restricting employees from using legal products outside of work) also was amended to include cannabis. Accordingly, employees may have a cause for an action under the Right to Privacy Act should an employer discipline an employee for cannabis use outside the workplace. To that end, drug testing prospective employees could be even more problematic because the prospective employee could not have yet demonstrated “impairment” in the workplace. Employers should be careful when making hiring decisions based on a drug test that is positive for cannabis.

UPDATE: The client alert has further developments.