Recreational cannabis is the law of the land in Illinois, and beginning January 1, 2020, adults 21 and older can legally buy and use the product. This doesn’t mean that everyone will be coming to work stoned. Relax. The Illinois Cannabis Regulation and Tax Act has specific provisions that allow employers like you to create a policy around cannabis that your employees can easily understand. Here are 5 things you need to know about legalized cannabis in the workplace:
1. Employers Have Strong Workplace Protections
Compared to all states with recreational cannabis, Illinois has the strongest workplace protections. According to The National Law Review, “The Act explicitly permits employers to adopt reasonable zero tolerance or drug-free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace, so long as the policy is applied in a nondiscriminatory manner.”
You can also prohibit cannabis use for employees who are on call, which is a time frame of at least 24 hours.
2. “Good Faith Belief” Provision
You can take disciplinary action against an employee only if you have what’s known as a “good faith belief” that the employee is showing, “specific, articulable symptoms while working that decrease or lessen the employee’s performance,” according to The Act. Specific symptoms of poor performance include:
- Changes to speech
- Changes to physical dexterity and coordination
- Irrational or unusual behavior
- Disregard for his or her own safety or the safety of other employees
- Involvement in a workplace accident causing injury or serious damage to machinery or property
If you discipline or terminate an employee applying the “good faith belief”, the law requires that you allow the employee to contest it.
3. Drug Testing Rules
The law gives you the right to drug test employees suspected of cannabis usage while at work. According to The National Law Review, “The (Illinois) legislature explicitly indicated that the intent of the bill is to protect employers from litigation for disciplining or discharging an employee for failing or refusing a drug test, including a random test.”
The tricky part, though, is that even positive drug test results can’t determine that the employee was under the influence while at work because cannabis can remain in your system for weeks. If you’re going to discipline or terminate an employee, it’s best to combine your “good faith belief” and positive drug test results.
4. Protections for Employees Who Consume Cannabis
Employees benefit from the new law, too. Simply put, you cannot discipline an employee who consumes cannabis lawfully outside of the workplace. An amendment was made to the Illinois Right to Privacy in the Workplace Act, which protects employees who legally use cannabis outside of work and non-call hours. You can be subject to legal recourse if you violate the terms. “The Right to Privacy in the Workplace Act allows aggrieved employees to recover actual damages, attorneys’ fees, costs, and statutory penalties, adds The National Law Review. “Therefore, violating the employee protections in the privacy act could prove costly for employers.”
5. How to Prepare for January 1, 2020
Education, education, education. Know the law inside out and train your employees so they understand your company’s drug policy. Determine how or even if you will approach the “good faith belief” standard. A best practice may be to enact it only if people are showing obvious signs of impairment detrimental to their performance, safety, and the safety of others. Practically speaking, the “good faith” standard may be difficult for employers to prove as many users of marijuana will not demonstrate the extreme symptoms identified in the Act, such as obvious physical and emotional changes or “disregard for the safety of the employee or others.”
33 states now have medical cannabis programs, and 11, including Washington D.C., have legalized recreational cannabis use. Cannabis is here to stay, especially in Illinois, so it’s critical to be fully prepared by January 1 and to keep up with all provisions that can impact your business.