With the legalization of recreational use of marijuana in Illinois as of January 1, 2020, employers need to review their policies and practices related to marijuana use by employees to comply with employee protections in the new law.
Drug Policies and Testing
Under the Cannabis Regulation and Tax Act, it is now legal for people over the age of 21 to use marijuana and possess up to 30 grams of cannabis flower and up to 500 milligrams of THC in cannabis-infused products. The Act also amends the Illinois Right to Privacy in the Work Place Act, which previously primarily served to prevent employers from discriminating against employees’ use of alcohol during their off-hours, to also include their usage of marijuana. Therefore, employers will no longer be permitted to maintain bans on usage of marijuana during their off-hours (except where required by other laws, such as federal laws regulating trucking). The Act clarifies that it does not bar employers from enforcing drug-free work place policies that ban the possession, use, or distribution of marijuana at worksites, and prohibit intoxication of employees while on duty or on call.
Best practices for testing for current intoxication on marijuana, rather than prior usage, are unsettled and imprecise. Urine testing only detects the metabolites, chemical compounds produced by the metabolization processes that remove the drug from the body, rather than the presence of the drug itself. The metabolites can be detected for several weeks after use, and do not indicate intoxication or impairment at the time of testing.
Blood and saliva testing do directly test for the presence of THC, but even that is not clearly established as a reliable measure of intoxication. While THC is purged more quickly from saliva and the bloodstream than metabolites are from urine, it still can remain in the blood stream after the user has recovered from any intoxicating effects.
Because laboratory testing is not a reliable means to establish intoxication, policies that prohibit employees from having detectable amounts of THC in their bodies may no longer be tenable, and testing should not be used as the sole means to establish intoxication for disciplinary purposes. Instead, intoxication should primarily be determined by observation of the symptoms of impairment. The Act protects employers who act on
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; disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others.
The Act also provides that the employee must have “a reasonable opportunity to contest the basis of the determination.” Employers may still require testing under the act, but because it cannot clearly establish intoxication at the time of testing, it should not be used as the sole basis for disciplinary action (except where other laws apply). To aid in identifying specific articulable symptoms of intoxication, managers and employees should be trained to recognize the symptoms of marijuana intoxication.
Policies regarding pre-employment drug screening should also be reconsidered. The Act is unclear on whether it also applies to pre-employment decisions. Unless other laws apply, reliance on screenings that detect prior marijuana usage in making hiring decisions may result in litigation until the issue is resolved.
Consideration of prior convictions or arrests
Another provision of the Act provides for the expungement of many marijuana convictions. The Illinois Human Rights Act prohibits employment discrimination based on expunged criminal records. Because of the large number of records that are being expunged as of January 1, processing the expungements may take some time to complete. As a result, background checks may still show marijuana-related convictions that have been expunged. Before considering any marijuana-related convictions in an employment decision, the nature of the conviction should be reviewed to determine if it is an expunged record.
We recommend that employers review and update any written drug policies they enforce to comply with the provisions of the Cannabis Regulation and Tax Act. If your work place does not maintain a policy, one should be created so that the employer’s expectations of their employees are clearly communicated. The attorneys at Plager, Krug, Bauer, Rudolph & Stodden, Ltd. have studied the new law, and are ready to assist in creating or updating your workplace drug policies.