The unknown impact of adult-use cannabis and the workplace remains a rich source of discussion among employers and employees alike. Many of our clients ask similar questions in anticipation of the new legislation. Below is a compilation of the most frequently asked questions regarding adult-use cannabis in Illinois after January 1st:
Can we still have a zero-tolerance employee drug policy?
Yes, insofar as your policy prohibits being under the influence of alcohol or drugs while at work, the legalization of cannabis for adults changes nothing. Since cannabis has behavior-altering effects, you can and should treat it like alcohol and prohibit employees from being under the influence while at work.
Should we still test for cannabis during post-employment drug and alcohol screens?
Testing decisions are the tricky part for employers. Because cannabis metabolizes slowly and at different rates for different individuals, it may take a month or more for a person to rid their system of evidence of cannabis use. This is long after the effects of cannabis have dissipated. Unlike alcohol, which people generally metabolize quickly, positive tests for cannabis use are highly unreliable in determining whether an employee is under the influence of cannabis while at work. While nothing prohibits an employer from testing for cannabis use as part of a post-employment drug screen, disciplining an employee solely on the basis of a positive test result for cannabis likely violates the Right to Privacy in the Workplace Act which prohibits any adverse employment action against an employee for their off-duty legal activities. Just as an employer cannot discipline an employee for having an alcoholic beverage off duty or smoking cigarettes or any other behavior that the employer may prohibit on duty, an employee who uses cannabis recreationally and consistent with the statute while off duty cannot be disciplined for such use.
A positive test for cannabis can be used as additional evidence of being under the influence while at work only as secondary or confirmatory evidence when the employer has established reasonable suspicion of such use. If an employer has reason to suspect that an employee is impaired by cannabis while working, management should clearly document all of the observed objective factors that support this suspicion. The law provides some guidance with regard to reasonable suspicion of cannabis impairment. Symptoms of impairment may include speech issues, problems with physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in the operation of machinery or equipment, an apparent disregard for the employee’s own safety or that of other employees, involvement in an accident or damage to the employer’s property, disruption of the workplace or negligent conduct that results in an injury to another employee. Unfortunately, many of these statutory factors may indicate other issues, such as a stroke or other physical impairment. Well documented symptoms of impairment by trained supervisors and managers are currently the strongest “test” for being under the influence of cannabis, which can be strengthened by a positive test result for the same.
So, employers can never use a positive test result for cannabis as the basis for discipline against employees?
No. Employees who must possess a CDL, certain law enforcement and employees who operate under federal grants can still be disciplined for cannabis use because cannabis is still illegal under federal law. Additionally, in Illinois, even after January 1, 2020, recreational cannabis use is still illegal for individuals under the age of 21. Employees under that age may still be disciplined solely on the basis of a positive cannabis test result.
Can we still include cannabis among the drugs tested in random drug tests?
Employers should no longer test for cannabis use as part of random drug testing except for CDL required positions, certain law enforcement personnel and those under 21 years of age, with the caveat for lawful medical cannabis use. Additionally, pre-employment drug screens should no longer include tests for cannabis as it will be a “lawful product” after January 1st.
How does the legalization of recreational cannabis affect our ability or need to regulate the use of medical cannabis?
The use of cannabis for lawful medical purposes has been the exception from discipline for qualifying individuals while cannabis is still an illegal drug for recreational use. After January 1st, employers will no longer need a medical cannabis caveat in their policies except for employees who are still prohibited from its use under federal law.
Do employers need to update their drug and alcohol policies?
Possibly. Since policies vary, it is important to review and when necessary, revise workplace drug and alcohol policies. Equally as important, is the need to revise employment practices in the workplace. Training or retraining supervisors and managers on reasonable suspicion indicators and updating forms that document such is essential. The strength of an employer’s disciplinary decision rests on how knowledgeable and thorough the process of determining reasonable suspicion is. Eliminating cannabis testing in pre-employment and random testing, except for DOT, some law enforcement and federally controlled positions will prevent allegations of violation of the Right to Privacy in the Workplace Act for adverse actions resulting from use of a lawful product while off duty.
