Employers’ growing cannabis concerns

By Daniel Saeedi, Rachel L. Schaller

Jan. 31, 2020

In 2019, Illinois became the 11th state to legalize recreational cannabis and the first to do so through the passage of a bill in the state Legislature.

The Illinois Cannabis Regulation and Tax Act makes it legal to possess and use up to a certain amount of cannabis and also provides several rules for employers. While one section allows for zero tolerance policies to remain in effect, another section amends the Right to Privacy in the Workplace Act, making it illegal to discipline or take other adverse workplace actions against employees who use legal cannabis outside of work.

It also provides a “due process” requirement; employers must provide an employee a reasonable opportunity to explain symptoms or a positive drug test before the employee is disciplined or terminated. The act also provides safe harbors for employers acting in good faith to discipline or terminate employees for cannabis use or possession in the workplace, or being “impaired” by cannabis at work.

Employers in states with legal cannabis should generally follow these four steps: (1) document objective, observable symptoms suggesting the employee is impaired in the workplace, including how such symptoms lessen the ability of an employee to perform job duties; (2) send the employee for a drug test; (3) if the employee tests positive for cannabis, allow the employee a reasonable opportunity to explain their side; (4) issue discipline and make termination decisions consistently and in accordance with lawful policies.

IMPACT: Special consideration must be given to the laws and regulations of each state so as to provide employers with best practices regarding cannabis-related discipline in the workforce.

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