Recreational Pot In The Employment Setting

The recreational use of marijuana became legal in Illinois on January 1, 2020. Although the intent and purpose of the Cannabis Regulation and Tax Act as amended (the Cannabis Act), is relatively straightforward, its implications in the employment setting are not so straightforward, particularly as they relate to employee drug testing.

Complicating the application of the Act in the employment setting is the existence of other laws that protect employees (or prospective employees in the case of conditional offers of employment) from the actions of employers relating to the use of legal products off premises and during non-work or non-on call hours. A further complication is the fact that cannabis is still illegal under the federal laws which apply to employers having government contracts or receiving government grants (but not including Medicare and Medicaid payments to health care providers).

When navigating how to handle the use of cannabis by employees and prospective employees, employers who are not government contractors or receiving government grants should keep in mind the following:

1. Under the Illinois Right to Privacy in the Workplace Act (the Privacy Act), an employer cannot discriminate against an employee for the use of cannabis outside of work time.
2. Employers in Illinois can still adopt “reasonable” zero tolerance or drug free workplace drug testing policies that may also require pre-employment drug and alcohol testing as well as random drug testing.
3. Employers in Illinois still have a right to take disciplinary action against employees who use, or who are impaired by, cannabis while at work or on call as well as against employees who test positive for cannabis.
4. Employers may withdraw offers of employment to prospective employees who test positive for cannabis.

Employers are advised to not just rely upon the presence of cannabis in an employee’s system when making an employment decision but to also reply upon a “good faith belief” that the employee “manifests specific articulable symptoms” that decrease or lessen the employee’s performance. Relying only on the presence of cannabis could run afoul to the Privacy Act.

For assistance in navigating the implications of this new law please contact Anthony Ashenhurst or call us at 630-948-4807.