In June 2019, Illinois became the 11th state in the country to legalize the use of recreational marijuana. This January, that law went into effect and was met enthusiastically by Illinoisans: newly legal dispensaries did $10 million in business in the first week alone.
Although it is often viewed as a legal matter affecting individual citizens, legalization introduces numerous complications and concerns for employers. While employers can still regulate the use of marijuana in the workplace, legalization has made enforcing those policies much more difficult and employers risk compliance violations if they overstep their bounds.
Whether you are a business owner or HR professional, you are probably already grappling with the effects of Illinois marijuana legalization. At Launchways, we know that our clients certainly have. So, we decided to bring in a legal expert and our in-house HR expert for a free webinar on navigating legalization in Illinois. We hosted the webinar on February 19th but you can still stream it on-demand anytime.
We want everyone to benefit from the advice that our experts gave during the webinar, so let’s take a look at the key points covered during the lively session.
- Webinar Overview
- Legalization Details and Key Distinctions
- What can employers legally do from a compliance standpoint?
- Compliance Concerns from Legalization
On February 19th, HR leaders from across Illinois tuned in for a presentation by two industry experts.Our first panelist was Heather Bailey. Heather is a partner in SmithAmundsen’s Labor & Enforcement Practice Group and has practiced in employment and labor counseling and litigation for 18 years. She counsels on day-to-day operations, human resources, and management decisions regarding employees, practices, and policies. In short, she is an expert in navigating employers through compliance issues and helping them create effective and compliant employee policies.
The second panelist was Launchways’ HR Client Manager, Karina Castaneda. Karina is a seasoned HR professional with over 15 years of experience working in employee benefits, performance, and staffing. She helps Launchways clients with all of their compliance questions and concerns and provides them with strategic advice regarding talent management.
Needless to say, both panelists know the ins-and-outs of compliance and effective employee management. And they proved full of valuable insights into effectively responding to marijuana legalization in Illinois.
Legalization Details and Key Distinctions
To start the webinar, our panelists went over the specifics of what the Illinois legalization law, officially known as the Illinois Cannabis Regulation and Tax Act, does and does not do.
The Act made recreational consumption of marijuana legal throughout Illinois and enshrined marijuana as a legal substance that employers can not regulate outside of the workplace as part of the Illinois Right to Privacy in the Workplace Act. The fundamental consequence of legalization and the modification of the Right to Privacy Act is that employers’ enforcement strategy needs to change from regulating use or consumption to regulating intoxication. Luckily, our panelists provided clear guidelines for how to effectively make the shift.
What can employers legally do from a compliance standpoint?
Employers can still take action against employees for being intoxicated in the workplace from marijuana just as they can for alcohol intoxication at work. Where things get tricky is that there is no such thing as a “breathalyzer” for marijuana. Your current drug testing policies will likely catch general drug use, but cannot pinpoint real-time intoxication, making them an ineffective enforcement tool that will expose you to compliance and lawsuit liabilities if you try to use them as the sole basis to prove intoxication at work.
As Karina outlined during the presentation, the law does not prohibit employers from regulating the possession, use, or distribution of marijuana in the workplace. So, employers can treat marijuana much as they already treat alcohol in the workplace, just with a slightly different enforcement strategy. Specifically, they should establish clear intoxication standards based on a combination of drug testing and document reasonable suspicion signs. And, says Karina, employers should update their policies to clarify the company’s stance on marijuana and the consequences of using the substance at work.
Heather delved deeper into effective and compliant enforcement of a zero tolerance workplace drug policy. Specifically, she emphasized the importance of establishing a good faith belief in intoxication as the grounds for any disciplinary action. She advised employers to provide concrete reasonable suspicion checklists and train managers on how to identify symptoms and record them using the checklists. Importantly, drug testing should be used to support these checklists but not used as an enforcement tool on their own.
Compliance Concerns from Legalization
Our panelists explained that employers need to tread carefully when pursuing disciplinary action against impaired employees in light of legalization. In addition to relying on a good-faith belief in intoxication and reasonable suspicion checklists, Heather emphasized that employers must allow employees the opportunity to contest the allegations to avoid compliance issues or potential grounds for lawsuits. However, the burden lies on employees to prove that they were not impaired so long as the employer has provided reasonable grounds for disciplinary action.
Heather also explained that because the Act protects marijuana use outside of work hours and while not on call, employers have to tread carefully so that they do not give even the appearance of discriminating against employees for using marijuana in their free time. That means that you cannot refuse to hire, terminate, or otherwise treat employees differently because of their perceived marijuana use so long as they are not using it at work. Similarly, you may face lawsuits if you take disciplinary action that is not based on a good-faith belief in actual impairment.
Both panelists cautioned employers against the inconsistent or uneven application of drug testing policies given the additional discrimination risks introduced by legalization. If drug testing seems targeted and is not based on recorded reasonable suspicion, you may face discrimination lawsuits. And across the board, clarity is your friend: make your drug policy and enforcement language as clear and explicit as possible and communicate changes to managers and employees.
Heather finished her presentation with a list of best-practices that employers should follow, including:
- Have a Zero Tolerance drug policy
- Educate employees on your company’s stance on cannabis
- Have an ADA process for medical marijuana users
- Update job descriptions for safety-sensitive positions
- Train, train, train management
- Do not rely on drug testing alone to prove impairment
Karina outlined how these changes affect your human resources policies, advising employers and HR professionals that they should:
- Evaluate current drug testing policies, including pre-employment testing, general testing, and post-accident testing
- Update employee handbook with a clear policy that states the company’s stance on cannabis use
- Notify and train managers on policy updates in light of legalization
- Enlist outside help for areas of confusion or when additional assistance is needed to update policies or train employees
Stream the Webinar for More Valuable Insights
In this article, we covered the general overview of the panel’s advice to employers and HR professionals. But addressing the effects of cannabis legalization in the workplace is such a complex and important topic that it is best to hear from the experts themselves. Stream the complete webinar on-demand anytime here.