Authors Jason Patterson and William Pokorny write for JD Supra……
Amid the flurry of activity late in the legislative term in Springfield, the General Assembly passed the Cannabis Regulation and Tax Act, making possession and consumption of cannabis legal in Illinois. Governor Pritzker is expected to sign the bill into law shortly. While the societal impact of this change in the law is yet to be seen, it is clear that the law will require some major changes in the way most Illinois employers address drug use by employees.
Zero Tolerance Face Hazy Future
Employers have long declared their workplaces “drug free” by adopting “zero-tolerance” policies that deny offers of employment and discipline employees who test positive for cannabis. The new law permits employers to maintain their “zero tolerance” policies when it comes to consumption, storage or use of cannabis in the workplace or while on call, so long as the rules are applied in a nondiscriminatory manner. However, the Act also amends the Illinois Right to Privacy in the Workplace Act, which prohibits employers from taking adverse hiring or disciplinary actions against employees for using a “lawful product” off the employer’s premises during nonworking hours. As you probably guessed, the Act amends this law to specifically include cannabis in the law’s definition of a lawful product. As a result, employers can no longer decline to hire, discharge, or take other adverse action against an applicant or employee merely because the individual tests positive for cannabis use.
Disciplining Employees for Impairment
While the law allows for employers to maintain reasonable employment policies to prohibit drug consumption and use at the workplace, the Act is clear that enforcement of these policies must be based on a good-faith belief that an employee is either using, possessing or is impaired on the employer’s premises or during working time. Current drug testing technology can tell whether an individual has used cannabis at some point in the past. The window of detection for cannabis use varies depending upon the testing method used. Urine tests may show cannabis use during the period from 1 to 30 days prior to the test. Hair testing can show use up to 90 days prior to the test. Oral fluid (saliva) can detect usage over a 24-hour period. (Source) Unfortunately, none of these techniques can tell an employer whether the subject of the test is currently impaired by cannabis use.
According to the new law, an employer can demonstrate a good-faith belief that an employee is impaired onsite if the 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 an 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.” Arguably, this means that employers can no longer rely on simple, relatively inexpensive, objective drug tests to determine whether an employee has violated their drug-free workplace policy. Instead, they will need to determine whether an employee is impaired by observation and judgment. In many cases, rather than relying upon their own managers and supervisors, it may be advisable for employers to send employees for a neurological examination by a trained health care provider. As compared to a simple drug test, this may be both more expensive and more logistically challenging for employers.
In addition to precluding employers from relying on tests for the presence of cannabis in an employee’s system as a basis for discipline, the new Act adds a due process element not ordinarily present in an at-will employment situation, requiring employers to afford the employee “a reasonable opportunity to contest the basis of the determination.”
What Has Not Changed
Some things have not changed under the new law. First, employers and employees that are subject to federal regulations, such as DOT-regulated drivers and federal contractors, can (and must) continue to comply with federal legal requirements, including drug testing.
The Right to Privacy in the Workplace Act also specifically excludes non-profit organizations that, as one of their primary purpose or objectives, discourage the use of one or more lawful products by the general public. So employers that have as part of their mission discouraging cannabis use will not suddenly be required to hire cannabis users.
While the new law effectively restricts employers from taking employment actions based on the mere presence of cannabis metabolites in an employee’s body, the same limitations do not apply to other illegal drugs. Employers may therefore continue to rely on drug tests and to discipline employees or decline to hire applicants who test positive for illegal drugs other than cannabis.
Finally, the law does not change how employers are permitted to enforce workplace policies regarding alcohol use. Unlike current tests for cannabis, alcohol testing does provide a reasonably reliable gauge of an individual’s current level of impairment at the time of the test. While employers should ensure that their procedures are consistent with best practices (such as using a competent testing vendor and Medical Review Officer to validate the results of any test), the new law does not require any changes to those policies and procedures with respect to alcohol.
Next Steps for Employers
Under the new legislation, cannabis will become a legal product under Illinois law effective January 1, 2020. Employers should update their policies and practices to comply with the new law by that date. Changes to consider include the following:
- Drug policies should be revised to specifically prohibit employees from possessing, using or being impaired by cannabis on the employer’s premises or during working hours.
- Unless they are required to maintain more stringent policies – for example, to comply with federal DOT regulations or contract requirements – employers should remove policies that decline to hire or discipline employees for off-the-clock cannabis use.
- Because employers will now bear the burden of determining whether an employee is impaired by cannabis at work, employers are strongly advised to train managers on how to identify signs of impairment and how to document their observations. This is particularly important in instances involving workplace accidents.
- In many cases, employers should consider backing up the observations of their own personnel by sending an employee for an examination by a qualified medical professional.
- Employers will also need to implement a process for employees who have been disciplined for suspected cannabis use to challenge the decision. While employers will not need to hold an evidentiary hearing, employees should at least be informed of the evidence supporting the conclusion that they were impaired and allowed to provide contrary evidence.
- Employers may wish to consider engaging a physician as a Medical Review Officer to assess the employee’s information and provide a medical opinion as to whether the employee’s alternative explanation for the observed signs of impairment is plausible.
As with any major new piece of legislation, employers should stay tuned for further guidance and legal developments, and should work closely with their legal counsel to ensure that their policies and practices comply with the law and make practical sense for their workforce.