On June 25, 2019, Illinois Governor J. B. Pritzker signed into law the Illinois Cannabis Regulation and Tax Act (aka the Cannabis Act), which is set to go into impact on January 1, 2020, joining 10 states (Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington), and the District of Columbia in legalizing recreational use of marijuana. This new law tends to make it legal to buy and consume cannabis in the state of Illinois and consists of protections for personnel who pick out to use cannabis even though away from the job. In light of these protections, Illinois employers ought to take affirmative measures to make certain compliance and to steer clear of missteps.
WHAT IS Altering?
When the law goes into impact on January 1, 2020, it will be legal for men and women age 21 and more than to buy, possess, and consume cannabis inside the state of Illinois, with out the threat of arrest or criminal prosecution and with out the have to have to get a prescription. Pertinent to employers, the law amends the state’s Appropriate to Privacy in the Workplace Act (which tends to make it illegal for employers to discriminate against personnel for use of “lawful products”) to incorporate any solution that is “legal below state law” — like cannabis pursuant to the Cannabis Act. On its face, the law tends to make it illegal for employers to refuse to employ or discharge any person, or otherwise disadvantage an person, with respect to compensation, terms, situations or privileges of employment basically since that particular person applied cannabis outdoors of operate. Pursuant to the Appropriate to Privacy in the Workplace Act, violations would permit an employee to recover actual damages, as nicely as penalties, charges, and attorney’s costs for willful and being aware of violations.
WHAT CAN/Ought to EMPLOYERS DO?
The law makes it possible for employers to discipline and/or terminate an employee on the basis of the employee’s impairment in the workplace — i.e. employers can nonetheless take action against personnel whom they think to be impaired or below the influence of cannabis in the workplace. According to the law, the employer have to have a “good faith” belief that the employee:
manifests certain, articulable symptoms even though operating that reduce or lessen the employee’s efficiency of the duties or tasks of the employee’s job position, like symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or uncommon behavior, or negligence or carelessness in operating gear or machinery disregard for the security of the employee or other folks, or involvement in any accident that outcomes in really serious harm to gear or home disruption of a production or manufacturing procedure or carelessness that outcomes in any injury to the employee or other folks.
Note that this list refers to “specific, articulable symptoms,” which means the employer’s excellent faith belief have to be primarily based on physical observation of the employee rather than test outcomes alone. The implications of this are twofold — (1) Employers can not merely rely on a constructive drug test outcome in order to establish a excellent faith belief that the employee is impaired or below the influence of cannabis (while a constructive test outcome would certainly be helpful to reinforce the belief) and (two) that getting the case, employers have to have to be in a position to recognize, document, and articulate outward indicators of impairment from cannabis use. Education supervisors and personnel on how to spot indicators of cannabis impairment and establishing policies for reporting and documenting these observations would most effective position employers to lawfully take action for impairment. Importantly, nevertheless, if adverse action is taken against an employee, below the new law the employee have to be supplied a affordable chance to contest the basis of the determination.
Employers can nonetheless keep a “reasonable” drug testing and zero tolerance drug policy, but with this new law, in most instances such policies ought to be revised to prohibit impairment or use/possession of cannabis even though on the job rather than a blanket, zero tolerance prohibition against cannabis use. Comparable to Illinois’ health-related marijuana law (the Compassionate Use of Healthcare Cannabis Pilot System Act), the Cannabis Act explicitly gives that it does not effect an “employer’s potential to comply with federal or State law or lead to it to shed a federal or State contract or funding.” This somewhat circular language concerning federal law is vexing with out additional guidance, due to the fact marijuana is nonetheless classified as an illegal Schedule I controlled substance at the federal level. In the absence of guidance, this language could be study to let employers that are government contractors or federal grant recipients to keep stricter testing procedures and policies, nevertheless, a quantity of state courts have held that state anti-discrimination laws may perhaps nonetheless demand employers to think about generating affordable accommodations for health-related marijuana customers. Provided these drastic alterations, employers are encouraged to take a close appear at their internal policies and procedures and revise to:
- Make clear that zero-tolerance drug policies prohibit possession of marijuana at the worksite and impairment even though on the job.
- Supply supervisors and personnel with education and tools to allow them to spot a cannabis-impaired employee.
- Clarify to personnel and managers the employee’s rights when it comes to difficult the employer’s excellent faith belief of impairment, and the procedures outlining that procedure.
A key query left open by the new law’s plain language is the continued efficacy of pre-employment drug testing. Considering the fact that the law discusses impairment in terms of “articulable symptoms even though operating,” it is unclear no matter whether a pre-employment constructive drug test alone could serve as a basis to refuse to employ or withdraw an supply of employment. Therefore, in light of this ambiguity and the prospective danger of liability, employers ought to reconsider no matter whether pre-employment drug testing remains appropriate for their business enterprise.
This is a establishing region of law each in Illinois and elsewhere about the nation, and it is unclear how the Cannabis Act will be applied in practice. As employers await clarification from Illinois courts, we will continue to watch legal developments in recreational cannabis states, like Illinois, that have addressed anti-discrimination provisions for common guidance, and report back right here.
Supply JD Supra – https://www.jdsupra.com/legalnews/illinois-cannabis-regulation-and-tax-42967/