With the new Illinois Recreational Marijuana Law in effect since January 1st, 2020, adults who are 21 and older can possess and consume marijuana and other cannabis products from licensed dispensaries throughout the state. However, employers may feel uncertain about how marijuana should be treated in the workplace.
Under the new law, employers can create and enforce “reasonable zero tolerance or drug-free workplace policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on-call provided that the policy is applied in a nondiscriminatory manner.” In addition to the new Marijuana recreational Laws, there have also been recent amendments to Illinois’ Right to Privacy in the Workplace Act. These changes prevent employers from discriminating against employees for using “lawful products” – which now includes marijuana.
What Should Employers Do Regarding These New Laws?
Although the laws state that employees can have a “reasonable workplace drug policy,” it does not really define what that entails. Here are some measures you can take to make sure your company takes proper steps to ensure compliance with the law:
- Review your drug testing policy to make sure employees know what you are testing for and the disciplining actions for a positive test.
- Review the type of job responsibilities of each position to see if, and when, drug testing for employees or applicants should be implemented. For example, random drug testing for high-risk positions (i.e., forklift driving, machine operators) may make more sense than in an office environment.
- Train supervisors and managers to make reasonable determinations of impairment for employees and how to document impairment. It is important to establish a “good faith belief” of impairment. According to the law, this means that an 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 affecting the employee’s speech, physical dexterity, agility, coordination or demeanor, or resulting in irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery;
- disregards the safety of the employee or others, or is involved in an accident that results in damage to equipment or property;
- disrupts the production or manufacturing process; or,
- exercises carelessness that results in any injury to the employee or others.
- Allow employees a reasonable opportunity to contest the basis of a good faith determination when related to at-work impairment or workplace accidents before moving on to disciplinary action.
- Take special consideration when dealing with employees with prescribed medical marijuana, as these cases have additional protections under Illinois’ Compassionate Use of Medical Cannabis Program Act.
Employers have a lot to consider when it comes to drug and alcohol use in the workplace. While many companies already have policies in place, it is essential to review and update them, especially when new laws are put in place.
If you would like more information on this topic, XCEL’s Human Resource team is here to help. Reach out to us today!
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