Two modifications to the law will affect employers. Firstly, section 10-50(e) of the Act was amended to make it clear that employers cannot be held liable for drug testing employees and disciplining them as a result of these tests. There were no changes to the Right to Privacy in the Workplace Act, so it is still illegal to fire an employee solely for testing positive for cannabis. Here is the modification:
(e) Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for:(1) actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test;, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing under the employer’s workplace drug policy, including an employee’s refusal to be tested or to cooperate in testing procedures or disciplining or termination of employment;
Secondly, section 10-35
of the Act, the provision affecting public safety employees (i.e. police,
firefighters, paramedics, etc.) was amended in a somewhat confusing way. Here
is the text of the amendment:
(8) the use of cannabis by a law enforcement officer, corrections officer, probation officer, or firefighter while on duty; nothing in this Act prevents a public employer of law enforcement officers, corrections officers, probation officers, paramedics, or firefighters from prohibiting or taking disciplinary action for the consumption, possession, sales, purchase, or delivery of cannabis or cannabis-infused substances while on or off duty, unless provided for in the employer’s policies. However, an employer may not take adverse employment action against an employee based solely on the lawful possession or consumption of cannabis or cannabis-infused substances by members of the employee’s household. To the extent that this Section conflicts with any applicable collective bargaining agreement, the provisions of the collective bargaining agreement shall prevail. Further, nothing in this Act shall be construed to limit in any way the right to collectively bargain over the subject matters contained in this Act;
The intent of this section appears to answer one of the most significant questions among public employers-which is whether they can continue to prohibit off duty as well as on-duty cannabis use. The debate on this has raged, with one camp expressing the view that firearms are still federally regulated and cannabis is still unlawful by federal law, therefore police cannot lawfully use cannabis, even off duty, and carry a weapon. As for firefighters, some argue that operating fire equipment is equivalent to driving a vehicle requiring a CDL, therefore, it should be similarly regulated. The other camp argues that if cannabis is lawful in the state and individuals are employees in the state, they should be allowed to use cannabis, like alcohol, when off duty.
While the above amendments seem to answer some lingering questions about cannabis use in the workplace going forward, how courts will interpret the Act remains unknown. Just a few words in a statute can be subject to great debate in the court system. This is especially true as to workplace issues and the interplay between cannabis use off duty and the Right to Privacy in the Workplace Act. When adopting policies regarding the use of cannabis by your public safety employees you should balance the risks of liability from the Right to Privacy in the Workplace Act and off-duty use of cannabis by public safety employees.
