With recreational marijuana soon to be legal in Illinois, many employers are concerned about employees showing up to work under the influence of marijuana. The good news for employers is that the Cannabis Regulation and Tax Act permits them to adopt zero tolerance policies. If an employee comes to work under the influence of marijuana, he or she can be fired or disciplined.
The bad news is that it is not that easy to tell whether an employee is under the influence of marijuana. To my knowledge there is no drug test that can precisely tell when someone used marijuana. Tests can tell whether the use has been within a couple of days, but since the effects of marijuana wear off after a few hours that doesn’t do much good in determining whether an employee is currently under the influence. And employers cannot punish employees for using marijuana outside of work. Until drug tests are accurate enough to determine whether someone is presently under the influence of marijuana, I don’t think it is a good idea to discipline employees who test positive for marijuana in a drug test.
The Cannabis Regulation and Tax Act does provide some standards that employers can consider in determining whether an employee is impaired, stating:
“An employer may consider an employee to be impaired or under the influence of cannabis if the employer has 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.”
That is a pretty vague standard. How does marijuana impairment impact an employee’s speech, physical dexterity, agility, etc? To my knowledge there isn’t a really clear standard to measure this.
One thing not mentioned in this definition that I think is probably the clearest indicator that an employee is under the influence of marijuana is odor. Marijuana has a strong, distinctive odor, and if an employee comes to work smelling like marijuana, that is a pretty clear indicator that he or she is under the influence. Red eyes is another indication, although that is not solely caused by marijuana use. If employers are creating a test to determine whether an employee is impaired those two indicators should be included in it.
Other potentially helpful resources in creating a standard to determine whether an employee is impaired are available at the websites of the American Addiction Centers (which you can access by clicking here), Narconon (which you can access by clicking here), and Addiction Center.com (which you can view by clicking here).
If you would like help creating a policy to be used when determining whether an employee is under the influence of marijuana, feel free to contact us for help doing so.
