Last updated: September 14, 2020
On June 25th, Illinois became the first state to approve the legal sale of marijuana purely through the state legislative process. That is to say, they didn’t seek voters approval on a ballot.
Gov. J.B. Pritzker signed the Cannabis Regulation and Tax Act (CRTA) into law becoming the eleventh state to legalize recreational use of the drug. Adults aged 21 and over will be allowed to possess and purchase up to 30 grams of marijuana.
The law goes into effect on January 1, 2020.
Ringing in the New Year
Visitors to the state, aged 21 and over, may purchase and possess 15 grams of marijuana.
Marijuana distribution is strictly regulated in all forms, cultivation, processors, retail stores, and testing laboratories. Business owners have the right to opt-in. This means they can provide spots for on-site cannabis consumption, such as cannabis coffee nooks or cafes.
What bell tolls for Illinois employers?
The CRTA doesn’t prohibit employers from enforcing a “reasonable” zero-tolerance or drug free workplace policy. In other words, employers may continue to drug test employees. In addition, the law states that employers may discipline or terminate an employee that violates company policies in regard to drug use.
Lastly, nothing in the law requires an employer to permit an employee to work under the influence of marijuana.
Moreover, the CRTA reads that there is no cause for action against employers that discipline or terminate an employee based on its good faith belief the employee is in violation of company policies. This pertains to beliefs that an employee used or possessed marijuana or who was impaired from the drug.
However, it’s not clear if the good faith belief can be based solely on the employee popping positive for marijuana when drug tested. The impairment factor is highly questionable because marijuana stays in the system long after the drug is consumed.
Things get a bit off key
The CRTA also amended the Illinois Right to Privacy in the Workplace Act. Now, the Privacy Act provides an excerpt. Employers cannot take adverse action against an employee or job applicant who uses a product outside of work that is lawful under state law.
Of course, these products include marijuana.
So, did that just throw a shadow over marijuana testing in general?
Which way will a reasonable cause case go in a court of law?
The truth is that we don’t know.
A case like this hasn’t gone to court yet. However, if employers are armed with documentation of reasonable cause and a positive employee drug test, the judge could rule in their favor.
It’s time to fine tune
Marijuana legalization in Illinois looks like a solid plan on the outside. When looking at it from an employer’s perspective, though, it could use some work.
For instance, what about Illinois employers who hire Wisconsin employees? Will you use an entirely different set of drug testing policies?
There’s a lot to figure out, huh?
Simply put, we need a test that detects current impairment. That would put an end to the problem of whether or not someone is testing positive because they use cannabis products at home.
Scientists are hard at work on a marijuana breathalyzer. Early studies show that marijuana is detectable in the breath for about two hours. That is approximately the same amount of time that someone is impaired.
However, we’ll note here that recent studies are leaning toward impairment lasting longer. There are determining factors to consider here though. Such as chronic use vs. occasional use or the levels of THC consumed.
Still, the ability to determine that someone is impaired while in the workplace will benefit employers greatly. We’ll hope they get the breathalyzer on the market soon.
Mouth swab tests are also gaining strides in early detection. This could be another source employers soon rely on.
As a whole, it is the intent of lawmakers to make laws that everyone can live with.
Where do you stand on the issue?
Make your thoughts known to your state and local officials. Take time now to voice your concerns about how marijuana legalization will affect your business.
It’s also not a bad idea to:
- Consider revising any policies that restrict hiring based on a THC positive.
- Go over all of your job descriptions. Specifically, include details for safety-sensitive roles where THC impairment would apply.
- Train your supervisors. They need to know how to handle the documentation of potential reasonable cause.
- Educate your employees on any policy changes.
Illinois may be the first state to take it upon themselves to legalize recreational marijuana, but employers don’t have to treat it as a law set in stone.
Work toward adding carve-outs to the law. It worked for alcohol, didn’t it? It may resolve the issues between employers and marijuana legalization as well.