How Legal Cannabis Could Cloud Illinois Employers' Ability To Enforce Drug-Free Policies
BELLEVILLE — Recreational cannabis will be legal in Illinois in less than two months, and some employers are scrambling to understand what legalization will mean for their drug-free policies.
Specifically, the new law pits an employee’s right to use marijuana recreationally on their own time against an employer’s ability to enforce drug-free policies under Illinois’ Cannabis Regulation and Tax Act.
“That’s the inherent contradiction,” said Thomas Berry, a principal attorney at the law firm Jackson Lewis.
Under Illinois’ Right to Privacy in the Workplace Act, a person can consume any “lawful product,” such as alcohol or tobacco, on their own time and not risk being fired or reprimanded at work.
“If someone is a smoker, an employer could prohibit them from smoking in the workplace, but cannot refuse to hire someone because they smoke outside the workplace when they’re at home,” Berry said.
Starting next year, recreational marijuana will also be protected under the state’s right to privacy. State lawmakers defined “lawful products” as any that are legal at the state level, which will soon include cannabis, Berry said.
The Cannabis Regulation and Tax Act in January will give protections to employers who want their workplaces drug free. But employers cannot simply rely on a positive drug test to fire or discipline an employee when they have no other evidence of someone being impaired at work, Berry said.
“The way they test now — with urine, hair or blood — it’s going to show up if you used it 30 days ago,” said Mitch Meyers, CEO of BeLeaf, an Earth City-based producer of CBD hemp oil products. “That’s the unfair thing.”
Meyers has worked in the cannabis industry since 2015, when she opened a medical marijuana dispensary in the Chicago area. She started running BeLeaf in 2015 and has applied for multiple licenses in Missouri’s new medical marijuana program.
“Let’s say someone (uses cannabis) at night for cancer or chronic pain,” she said. “When they come into work the next day, they’re completely not impaired, but it’s going to show up in their system.”
‘How do you know how impaired a worker is?’
Impairment — and how to measure it — is only loosely defined by Illinois’ recreational cannabis law.
Berry said impairment levels are nearly impossible to measure right now, and tests that might be able to provide real-time readings are months, if not years, away from coming to market.
Ahead of January 2020, the Southern Illinois Builders Association is hosting events to help contractors understand how cannabis legalization could impact their workplaces. But many of the law’s impacts are still unknown, said association CEO Donna Richter.
“When you say ‘impaired,’ how do you know how impaired a worker is?” she said.
The association supports the construction industry in the area with policy ideas, industry best practices, workforce development and other initiatives.
She recommends contractors adopt broad zero-tolerance policies because of the risk that someone impaired, even slightly, from recreational marijuana poses to safety in the construction industry.
But if executed improperly, such a zero-tolerance policy could raise a wrongful discharge suit.
“With all the uncertainty out there, nobody knows what to expect, and I think it’s all going to depend on that first lawsuit,” Richter said. “It’s going to be trial and error.”
Richter said once some legal precedent is set in Illinois, she will adjust the policy recommendations she makes to contractors in her association.
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