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What Illinois Employers Need to Know About the New Illinois Cannabis Laws

Published on October 31st, 2019

Legal Marijuana Shouldn’t Mean Dazed and Confused Workers!

Starting on January 1 consumers will be able to buy marijuana for recreational use from licensed sellers.   Pot users will no longer need to worry about fines or jail time – but employees will need to pay attention to their employers’ policies about drug screenings and the use of cannabis at work.

Employers should consider how they want to handle the legalization of cannabis in terms of workplace policies, written guidelines and staff training on the many issues that employers will be facing.  Employers should take the time to review Section 10-50 of the “Illinois Cannabis Control Act” to see what protections they do and do not have.  Among these are:

  • Employers are not required to permit employees to use or be under the influence of cannabis while on the job or on call.
  • Employers are allowed to discipline or terminate employees who violate their workplace drug policy or other employment policies.
  • These policies can be more or less zero tolerance, as long as they are uniformly enforced, with regard to storing or consuming marijuana either in the workplace or while performing job duties elsewhere.
  • Employers are given guidelines in making good-faith determinations that employees are under the influence—but must give employees a chance to appeal.
  • Disciplined or terminated employees have no legal cause for action against the employer, unless they can prove bad faith.

It should be noted that any person, business or landlord can prohibit use on private property.

For employers, it should also be noted that the Cannabis Control Act amends the previously established Right to Privacy in the Workplace Act to incorporate the employer workplace protections set forth in Section 10-50.

The bottom line for employers is this: an employee who consumes marijuana legally and off-duty, but whose employer maintains a drug-free workplace and random drug testing, can still legally be terminated even if they are not impaired at work.

In gearing up for the implementation of the Illinois Cannabis Control  Act, employers need to ask themselves a number of questions:

  • Should we say something upfront about what will or will not be allowed, not raise the issue at all, or take a middle-ground approach?
  • Should we adjust workplace drug policies and overall employment policies in terms of discipline and possible termination for marijuana use, including positive tests that may or may not indicate impairment in the workplace, given how long cannabis stays in the bloodstream?
  • How should we train supervisors to watch for signs and symptoms of impairment – and procedures to follow when they detect it? The Cannabis Act provides this information, and using it helps establish good faith on the employer’s part.
  • What written procedure should we have in place to enable employees to contest a disciplinary decision, as the act requires?
  • Do we need to shift our reasonable accommodation policy and procedures? The previously enacted Compassionate Use of Medical Cannabis Pilot Program Act and the Opioid Alternative Pilot Program both allow patients diagnosed with certain conditions to use marijuana for medical reasons. And both federal courts and those in other states have found this to be a reasonable accommodation when used outside of work in a way that does not impact safety or job performance.

Studying the Illinois Cannabis Control Act and taking the appropriate steps will ensure that employers maintain a safe, competent workplace without getting smoked in the courts.   Consult with experienced Chicago Business Lawyers.

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