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FAQs: Weed at Work

Come January 1, recreational marijuana use will be legal for adults 21+ throughout the state of Illinois. Ahead of the law taking effect, we hosted a webinar on what the new recreational marijuana law means for employers in Illinois. Below are answers to some of the frequently asked questions we received.

If a job applicant tests positively for marijuana, is it legal to remove the candidate from consideration for the position?

Part of the new law stipulates that employers cannot discriminate against a job applicant for testing positive for marijuana. Under the new law, recreational marijuana use for adults 21 years of age and older is legal, and off duty use is protected under the state’s lawful consumable use statutes, so eliminating a candidate from consideration because of a positive drug test is illegal.

Can a company still have a “zero-tolerance” and drug-free workplace policy?

Yes. However, a company must be cautious so as not to violate the Illinois Right to Privacy in the Workplace Act (“IRPWA”), a separate statute that prohibits employers from taking an adverse employment action based on an individual’s use of legal products while off duty and not at the workplace. “Off duty” conduct means during non-work hours and also non-on call hours. The new law amended the IRPWA to clarify that “legal products” includes all products that are legal under state law, which includes alcohol, tobacco, and as of January 1, 2020, marijuana.

Can a company discipline or terminate an employee for marijuana use?

The short answer is yes. You can discipline or terminate an employee. However, it gets complicated.

Illinois employers have the right to fire people for being impaired, by any substance, at work. Employers can use drug tests or alcohol breathalyzers to determine whether someone is under the influence. However, drug tests don't work the same as breathalyzers, which would tell you if someone is under the influence of alcohol at that moment in time. Drug tests don't show whether someone is currently under the influence of marijuana. Drug tests only shows what drugs they have used drugs in the past. That can be from a day to months, depending on how the person metabolizes the drug and the law prohibits employers from discriminating against people for using marijuana on their own time.

For that reason, a company should not rely solely on a drug test as conclusive evidence of an employee’s use of or impairment by marijuana in the workplace or while on call. Employers should rely primarily on observable indications of impairment as the basis for further investigation (including for-cause drug testing) or disciplinary action.

The law includes a non-exhaustive list of symptoms the company can consider in determining whether an employee is impaired or under the influence of cannabis:

· Impaired speech, physical dexterity, agility, or coordination;

· Changes to demeanor, including irrational or unusual behavior;

· Negligence or carelessness in operating equipment or machinery;

· Disregard for the safety of the employee or others;

· Involvement in any accident that results in serious damage to equipment or property;

· Disruption of a production or manufacturing process; and/or

· Carelessness that results in any injury to the employee or others.

The employer can then use drug-testing as a back-up to the observable indications of impairment or use of the drug.

If you adopt a zero-tolerance policy, companies can terminate an employee who they believe to be impaired by marijuana, BUT organizations need to have the documentation and evidence to back it up. Employers cannot terminate an employee without evidence and without giving that employee a “reasonable opportunity to contest” the decision.

What does "reasonable opportunity to contest" mean?

The law states employers must give employees the opportunity to contest if they feel they are unfairly accused of being impaired at work. However, what a "reasonable opportunity to contest" means is still ambiguous as the State of Illinois hasn't yet established a precedent since the law has yet to take effect. Once case law for this particular component of the law is established, employers will have more guidance on what "reasonable opportunity to contest" actually entails.

Are there other options for a company that suspects an employee of marijuana use?

The company should focus on the employee's behavior itself and not the suspected cause of that behavior. If the employee is not competently performing the duties of the job, or lacks the physical dexterity, agility, coordination, or demeanor to competently perform the job, or engages in irrational or unusual behavior, or displays negligence or carelessness in the performance of the job, or disregards the employee's own safety or the safety of others, the reason does not matter. In such a situation, the company should simply treat the employee the same as any other employee who is underperforming or violating disciplinary rules.

An employee's failure or inability to competently perform the duties of the job, or to comply with company policies or safety rules, is unacceptable, regardless of whether that failure or inability is caused by the use of marijuana.

Are hair tests a good way to test for marijuana use?

Hair tests do test for marijuana; and they can trace marijuana use up to 90 days after it’s been used/consumed. If hair tests come back positive, the individual could have used marijuana anytime in the past 90 days. Other types of drug tests include urine and blood tests. There are various panel types for these that identify a variety of drugs, including marijuana in a person's system.

Are there any exceptions under the new law?

Yes. Under the new law, organizations with federal contracts, that are subcontractors for the federal government, or that receive federal grants or donations must abide by the federal law, which still classifies marijuana as illegal.

For example, if you are regulated under a federal department like the Department of Transportation, you would qualify under an exception to the law, which means you would be required to drug test and enforce a zero-tolerance workplace regardless of what the new law stipulates.

Given that this law is a bit complex, it is best to consult with your employment attorney on the best way to navigate through this new law.

For more information, download our webinar here.