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On June 25, 2019, Governor Pritzker signed the Illinois Cannabis Regulation and Tax Act into law, making Illinois the 11th state to legalize recreational cannabis. The law went into effect this January and dispensaries sold over $10 million worth of recreational marijuana in the first week.

The legalization of Illinois recreational cannabis has potentially serious ramifications for business owners, HR professionals, and managers. Many fear that their employees will show up high at work or get high at work during breaks. And because using recreational marijuana is no longer in itself illegal in Illinois, employers can’t enforce zero-tolerance policies towards its use – just its use at work.

While there are valid concerns, Illinois recreational marijuana legalization doesn’t pose an existential threat to employers. As long as you are careful and implement a few straightforward policies, there is no reason to fear legal recreational cannabis.

So, how can you protect your business from having employees show up high at work and from discrimination suits for taking action against employees for being high at work? In this article, we’ll explore:

  • Concerns About Recreational Marijuana in Illinois
  • Preventing Employees From Being High at Work
  • Protecting Yourself Against Lawsuits for Policies Against Marijuana in the Workplace
  • Why Illinois Recreational Marijuana Legalization Isn’t a Threat to Businesses
  • How to Learn More

Concerns About Recreational Marijuana in Illinois

Whether you support it or not, Illinois recreational cannabis legalization is a reality. What does that mean for you as a business owner, manager, or human resources professional?

For the most part, your policies on recreational marijuana and drug testing in the workplace shouldn’t have to change. But the way that you enforce those policies may need to be modified.

Despite what some business owners think, and some overeager employees might insist, your employees aren’t suddenly allowed to show up high at work. Employers are still allowed to have zero-tolerance policies for the consumption of recreational marijuana, intoxication from recreational cannabis, or the storage of marijuana during work hours or while on call.

But you’re no longer allowed to take action against employees who use recreational marijuana outside of company time and are not high at work. Many employers might not have a problem with this on the face of it. After all, off the clock employees’ time should be their own unless the after-effects impact their job performance.

However, even if you fully support the use of recreational cannabis outside of work, the legalization of recreational marijuana in Illinois makes it harder for you to prevent employees from being high at work. And it exposes you to potential discrimination lawsuits if you take action against employees for being high at work based on evidence of their use of recreational cannabis in general rather than just at work.

After all, there is no equivalent of a breathalyzer for marijuana as of yet. That means that there is no surefire way to tell if an employee is high at work. And methods for drug testing in the workplace have varying degrees of accuracy. Many companies that are currently drug testing for marijuana are using hair follicle drug testing. But hair follicle drug testing is only useful to tell whether or not an employee has used recreational marijuana in the past several weeks or even months. That means that hair follicle drug testing is now more or less obsolete for drug testing in the workplace in states with legalized recreational cannabis. And urine tests are not even a reliable solution for drug testing in legal states as they can deliver positive results for recreational marijuana use anywhere between two weeks and a month in the past.

You might think that you can still take action against employees for using recreational marijuana during off hours because recreational cannabis is still illegal on a federal level. That might be true if the Illinois law simply allowed employers to control marijuana use at work and did not give the same right for off-work hours. But the 600-page law amends the Illinois Right to Privacy in the Workplace Act that prohibits employers from punishing employees for using legal substances outside of work to expand the definition of legal substances to include recreational cannabis and medical marijuana. So while you won’t break federal law by punishing employees for consuming recreational marijuana outside of work, you will be in violation of state law.

So, how can you stop employees from being high at work without breaking the new Illinois recreational marijuana legalization law or exposing yourself to lawsuits?

Preventing Employees From Being High at Work

If you can’t rely on traditional drug testing in the workplace to prevent employees from being high at work, what can you do?

The Illinois recreational cannabis law establishes reasonable suspicion or good-faith belief that an employee is high at work as a legitimate standard for taking action against that employee. So, until somebody invents foolproof technology for marijuana-use testing to see if an employee is currently high at work, your best bet is to leverage the reasonable suspicion standard.

How can you take advantage of the good-faith belief standard as laid out in the Illinois recreational marijuana bill? The first step you should take is to train supervisors and managers on how to identify drug use, including distributing reasonable suspicion checklists that they can fill out for incident reports, and educate all of your employees about the reasonable suspicion standard that will be used to tell whether they are high at work. That way, your team will be prepared to meet the standard and your company will be sheltered from liability for enforcing the standard. You should also include the reasonable suspicion checklists in all of your accident report forms, especially if your business is especially susceptible to workplace-safety issues.

According to the Illinois recreational marijuana legalization law, these are the symptoms that your team should record if they suspect an employee is high at work and that you can use to meet the good-faith standard:

  • Changes in speech, dexterity, agility or coordination
  • Irrational, unusual or negligent behavior when operating equipment or machinery
  • Disregard for the safety of others
  • Carelessness that results in any injury to others
  • Involvement in any accident that results in serious damage to equipment or property
  • Production or manufacturing disruptions

So long as you are meticulous about recording symptoms at the time, you should not have to fear reprimanding employees for showing up high at work. Under the Illinois recreational marijuana bill, if an employer demonstrates a good faith belief that an employee is high at work, the burden shifts to the employee to prove that they were not impaired.

And you can still use drug testing in the workplace as part of your efforts to dissuade employees from being high at work. Random drug testing for marijuana is explicitly permitted under the new law and can provide additional support for reasonable suspicion claims. And you can maximize the usefulness of random drug testing by reviewing your methods for drug testing in the workplace to ensure that you are testing for use in the past 6-12 hours rather than the past 30+ days. For instance, replace hair follicle drug testing with more accurate saliva or blood testing. Just don’t use drug testing as the sole justification for any disciplinary actions.

Protecting Yourself Against Lawsuits for Policies Against Marijuana in the Workplace

Now that you know how you can effectively address the use of recreational cannabis in the workplace, let’s take a look at how you can safeguard yourself against lawsuits when you take action against an employee for being high at work.

First and foremost, don’t take action against employees without the standards we outlined in the last section and always air on the side of caution, even if you meet the reasonable suspicion standard. It’s generally not worth risking serious disciplinary action against an employee unless their use of recreational marijuana poses a threat to their productivity or workplace safety, and if that is the case, then they have probably well surpassed the good-faith suspicion standard.

Beyond following proper enforcement procedures, another step that you can take to minimize your liability is to give employees advanced notice regarding any changes in drug enforcement policy and to provide comprehensive education about the recreational marijuana policies and their enforcement. This can head off claims of unfair surprise, prevent unnecessary lawsuits from being filed because an employee didn’t know what the policies were, and ensure that managers enforce the policies properly.

You may well have to review your drug enforcement policies as well as your anti-discrimination policies because Illinois recreational cannabis legalization adds pressure behind previous discrimination issues. Recreational marijuana enforcement has a history of racial bias and you have to tread especially carefully to avoid any semblance of bias, whether conscious or unconscious. So, conduct rigorous implicit and explicit bias training and make sure that random drug testing in the workplace is genuinely random and applies to all employees equally.

So long as you follow these steps, you shouldn’t have too much to worry about regarding discrimination lawsuits as a result of the legalization of recreational marijuana in Illinois.

Why Illinois Recreational Marijuana Legalization Isn’t a Threat to Businesses

The good news is that unless you work in an industry fraught with workplace-safety concerns, such as construction, Illinois recreational marijuana legalization is cause for caution rather than concern. As long as you put the right systems in place, there’s no reason to be too worried about the legalization of recreational marijuana. You will still be able to stop employees from being high at work and take action against employees who do use recreational marijuana at work, without fear of damaging lawsuits.

And while you should protect yourself from repeated workplace intoxication that causes performance or cultural issues and from discrimination lawsuits, casual use by employees should not be an issue for most employers. Ten other states have legalized recreational marijuana and businesses continued to thrive. States with legalized recreational cannabis states represent four out of the top five state economies in the country and California, the poster-child for legalization, is the largest state economy in the country. Illinois business owners will be fine – so long as they handle the transition correctly.

Illinois recreational cannabis even presents opportunities for employers to set themselves apart and win the war for talent. According to a 2019 survey by PBS Research, Civilized, Burson Cohn & Wolfe, and Buzzfeed News, half of Illinoisans surveyed said that their ideal workplace would permit marijuana use outside of work but that two-thirds were uncomfortable with use in the workplace. If those numbers are accurate, most employees are likely to respect the prohibition of marijuana use at work and business owners can improve their employer branding by taking a hands-off approach to recreational cannabis use outside of work.

How to Learn More

The legalization of Illinois recreational cannabis has made things a lot more complicated for business owners and HR professionals throughout Illinois. There’s no way that we can cover all of the complexities and details of how you should handle the legalization of recreational cannabis, prevent employees from being high at work, and protect yourself from discrimination lawsuits in one article. Nor are we attorneys who can give you sufficient legal advice.

That is why we’ve enlisted the help of an attorney who is well-versed in all things employment law to help guide business owners and HR professionals through this turbulent transition. Heather Bailey is a partner at SmithAmundsen’s and an expert in employment and labor counseling and litigation. She’ll be joining our very own HR Client Manager Karina Castaneda for a comprehensive free webinar on understanding the ins-and-outs of the Cannabis Regulation Act and how it affects Illinois employers.

Join us on February 19th at 11am CST to learn what these two experts have to say about preparing your company for legalization. Register Today!

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