On June 4, 2019, the Illinois legislature passed the Cannabis Regulation and Tax Act. In a nutshell, the use of cannabis in Illinois will now become recreational effective January 1, 2020.

Under this act, the General Assembly finds and declares that cannabis should be regulated in a manner similar to alcohol. To the extent that persons, age 21 and older, will have to show proof of age before purchasing cannabis.

When it comes to how we handle this in the workplace as employers however, we still have some rights, unlike other states. The General Assembly declares at the beginning of the “Cannabis Act” that “employee workplace safety shall not be diminished and employer workplace policies shall be interpreted to protect employee safety.”

A snapshot of Sections 10-50 gives us a few guidelines on what we can expect as employers in how to move forward with our enforcement of this new law.

• Nothing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug-free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on-call provided that the policy is applied in a nondiscriminatory manner.
• Nothing in this Act shall require an employer to permit an employee to be under the influence of or use cannabis in the employer’s workplace or while performing the employee’s job duties or while on call.
• Nothing in this Act shall limit or prevent an employer from disciplining an employee or terminating the employment of an employee for violating an employer’s employment policies or workplace drug policy.
• An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others. If an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.
• Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for:
  • actions, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing under the employer’s workplace drug policy, including an employee’s refusal to be tested or to cooperate in testing procedures or disciplining or termination of employment, based on the employer’s good faith belief that an employee used or possessed cannabis in the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s employment policies;
  • actions, including discipline or termination of employment, based on the employer’s good faith belief that an employee was impaired as a result of the use of cannabis, or under the influence of cannabis, while at the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s workplace drug policy; or
  • injury, loss, or liability to a third party if the employer neither knew nor had reason to know that the employee was impaired.
• Nothing in this Act shall be construed to enhance or diminish protections afforded by any other law, including but not limited to the Compassionate Use of Medical Cannabis Pilot Program Act or the Opioid Alternative Pilot Program.
• Nothing in this Act shall be construed to interfere with any federal, state, or local restrictions on employment including, but not limited to, the United States Department of Transportation regulation 49 CFR 40.151(e) or impact an employer’s ability to comply with federal or state law or cause 25 it to lose a federal or State contract or funding.

So what should we do to prepare for the upcoming change in 2020?

1. Consider whether or not you will continue to provide a drug-free workplace. If so, will you address with your staff prior to rolling this out?
2. Evaluate your policies and procedures when it comes to the legalization of marijuana. The policy should clearly state that you are cannabis, drug, and alcohol-free workplace, what the consequences will be of violating this policy as well as how they can contest a cannabis-related disciplinary decision.
3. While this act does not state specifically that reasonable accommodation must be made, medical marijuana laws might require you to engage in the interactive process.
4. Train your staff on the signs of impairment and the procedures to follow for reasonable suspicion drug testing and post-accident drug testing.
5. It’s always wise to consult your attorney to review these policies prior to putting them in place.

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