On January 1, recreational cannabis becomes legal in Illinois. Here are five changes that you may need to make to your personnel policies before cannabis becomes legal on January 1:
Remove all provisions that discipline an employee for using cannabis outside of work.
Along with the passage of the Cannabis Regulation and Tax Act last June, the Right to Privacy in the Workplace Act was amended to make it illegal for an employer to discipline an employee for using products legal under state law, like cannabis, outside of work. Disciplining an employee for using cannabis outside of work could lead to fines and lawsuits.
As we recently discussed, this provision probably does not apply to public safety personnel. So, police, firefighters, and paramedics can be prohibited from using cannabis outside of work and disciplined for doing so.
Remove any provisions disciplining an employee or job applicant solely for testing positive for cannabis.
Limitations in drug testing technology make it impossible to know precisely when someone who tests positive for cannabis used it. While you are free to drug test employees for cannabis and other drugs, disciplining an employee solely for testing positive for cannabis could leave you in legal trouble. An employee who tests positive for cannabis could say that he or she consumed the cannabis outside of work, an activity protected by the Right to Privacy in the Workplace Act. There would be no way for an employer to refute that claim based on current drug testing technology.
Add reasonable suspicion criteria to your policies.
You are still permitted to ban cannabis from your workplace after January 1 and to discipline employees who come to work under its influence. As noted above, merely testing positive for cannabis does not prove that an employee is under its influence at work. Instead, employers should consider other factors that show that an employee is under the influence of cannabis, and should document all signs that an employee is under the influence of cannabis at work. The easiest way to do this is by creating a checklist of symptoms that a supervisor observes that lead to a reasonable suspicion that the employee is under the influence of cannabis. This checklist should be part of your personnel policy. Be sure to train your supervisors to fill out this checklist when they believe someone is under the influence of cannabis.
Make sure you understand how to treat CDL holders.
You do not need to revise your drug testing policies for CDL holders. Federal regulations and the Cannabis Act make it clear that there is no change in the drug testing requirements for CDL holders. You still must drug test CDL holders and prohibit them from operating the machines that require the CDL if they test positive for cannabis or other drugs. You may discipline a CDL driver who tests positive for cannabis.
Allow employees to take time off of work if they are struggling with addiction.
The Family and Medical Leave Act requires employers to provide employees with unpaid leave to get treatment for addiction. So if the FMLA applies to you, do not punish an employee for seeking treatment for addiction to cannabis, alcohol, or other drugs.