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 obtain and consume cannabis in the state of Illinois and contains protections for personnel who pick to use cannabis although away from the job. In light of these protections, Illinois employers need to take affirmative methods to guarantee compliance and to prevent missteps.
WHAT IS Altering?
When the law goes into impact on January 1, 2020, it will be legal for folks age 21 and more than to obtain, possess, and consume cannabis inside the state of Illinois, devoid of the threat of arrest or criminal prosecution and devoid of the need to have to receive a prescription. Pertinent to employers, the law amends the state’s Correct to Privacy in the Workplace Act (which tends to make it illegal for employers to discriminate against personnel for use of “lawful products”) to consist of any item that is “legal beneath state law” — such as 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 simply because that individual employed cannabis outdoors of function. Pursuant to the Correct to Privacy in the Workplace Act, violations would permit an employee to recover actual damages, as nicely as penalties, fees, and attorney’s charges for willful and being aware of violations.
WHAT CAN/Need 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 beneath 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 although functioning that lower or lessen the employee’s efficiency of the duties or tasks of the employee’s job position, such as 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 individuals, or involvement in any accident that outcomes in severe harm to gear or home disruption of a production or manufacturing method or carelessness that outcomes in any injury to the employee or other individuals.
Note that this list refers to “specific, articulable symptoms,” which means the employer’s fantastic 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 good drug test outcome in order to establish a fantastic faith belief that the employee is impaired or beneath the influence of cannabis (even though a good test outcome would certainly be valuable to reinforce the belief) and (two) that getting the case, employers need to have to be in a position to determine, document, and articulate outward indicators of impairment from cannabis use. Coaching supervisors and personnel on how to spot indicators of cannabis impairment and establishing policies for reporting and documenting these observations would ideal position employers to lawfully take action for impairment. Importantly, nevertheless, if adverse action is taken against an employee, beneath the new law the employee have to be supplied a affordable chance to contest the basis of the determination.
Employers can nonetheless sustain a “reasonable” drug testing and zero tolerance drug policy, but with this new law, in most circumstances such policies need to be revised to prohibit impairment or use/possession of cannabis although on the job rather than a blanket, zero tolerance prohibition against cannabis use. Related to Illinois’ healthcare marijuana law (the Compassionate Use of Health-related Cannabis Pilot Plan Act), the Cannabis Act explicitly gives that it does not influence an “employer’s potential to comply with federal or State law or trigger it to drop a federal or State contract or funding.” This somewhat circular language concerning federal law is vexing devoid of additional guidance, considering the fact that 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 sustain stricter testing procedures and policies, nevertheless, a quantity of state courts have held that state anti-discrimination laws could nonetheless need employers to take into account producing affordable accommodations for healthcare marijuana customers. Provided these drastic modifications, 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 although on the job.
- Deliver supervisors and personnel with coaching 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 fantastic faith belief of impairment, and the procedures outlining that method.
A significant query left open by the new law’s plain language is the continued efficacy of pre-employment drug testing. Due to the fact the law discusses impairment in terms of “articulable symptoms although functioning,” it is unclear regardless of whether a pre-employment good drug test alone could serve as a basis to refuse to employ or withdraw an give of employment. As a result, in light of this ambiguity and the prospective danger of liability, employers need to reconsider regardless of whether pre-employment drug testing remains appropriate for their business enterprise.
This is a building location 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, such as 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/