This article is intended to prepare you, as an Illinois Employer, to interact with your employees in a legal manner under the new law in Illinois allowing recreational use of cannabis. It is authored by Sarah R. Sehy, Attorney at Law, with the Tapella & Eberspacher Law Firm, 6009 Park Drive, Charleston, IL 61920, (217) 394-5885, and is being republished here with their permission.

Illinois’s cannabis laws are set to change with the new year; right now is the time to make sure your company’s policies and practices are up to date and in line with new laws.

Beginning January 1, 2020, possession and use of recreational cannabis will be legal for adults over the age of 21 in Illinois.  As an employer, you may find yourself trying to balance safety concerns with changes to the law and wondering what you can and cannot do.

Illinois’s new cannabis laws interact with existing labor and employment laws in a way that you, as an employer, need to understand.  For federally-regulated, safety-sensitive positions, such as commercial drivers, aviators, federal contractors, and school bus drivers, cannabis use remains barred and a positive drug test by such an employee is grounds for termination.

For non-federally regulated employees, Illinois’s Right to Privacy in the Workplace Act bars an employer from taking adverse employment actions for “use of a lawful product.” As of January 1, 2020, that will mean a person cannot be terminated from employment for using cannabis off-duty or for testing positive for cannabis. Pre-employment drug screens may check for cannabis use, but a positive result for cannabis cannot be the basis for an adverse employment decision. Ultimately, this may mean you should forego screening for cannabis as part of your hiring process.

Employers are still permitted to adopt and enforce a zero tolerance, drug free workplace policy that bans cannabis from the workplace and prohibits the use of it while an employee is at the workplace, performing a job duty, or on call.  You may terminate or otherwise discipline an employee for being under the influence of cannabis while at work.  However, because of the way cannabis is metabolized, a person can test positive days after use and long after any actual impairment, and so, the basis for an adverse employment action cannot solely be a failed drug test.  Instead, the employee must demonstrate observable signs of impairment, such as impacts to their speech, dexterity, coordination, or other unusual behavior.

If you suspect an employee is under the influence of cannabis, you should contemporaneously document the behaviors that formed your belief.  Employees have the right to challenge the basis of a termination if they feel their employer did not have evidence that they were impaired, although no formal hearing process is required.  The new cannabis laws provide a safe harbor for employers who possessed a good faith belief an employee was impaired, and you should take steps to memorialize your good faith belief in the same manner you would document any other bad behavior by an employee.  We recommend a contemporaneous writing, such as an email or memorandum which outlines the observed behaviors, having two managers or supervisors sign off on these observations, collecting witness statements, and preserving surveillance footage.

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