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 buy and consume cannabis in the state of Illinois and consists of protections for workers who pick out to use cannabis whilst away from the job. In light of these protections, Illinois employers must take affirmative methods to make certain compliance and to stay clear of missteps.
WHAT IS Altering?
When the law goes into impact on January 1, 2020, it will be legal for men and women age 21 and more than to buy, possess, and consume cannabis inside the state of Illinois, without having the threat of arrest or criminal prosecution and without having the want to get a prescription. Pertinent to employers, the law amends the state’s Appropriate to Privacy in the Workplace Act (which tends to make it illegal for employers to discriminate against workers for use of “lawful products”) to incorporate any item that is “legal below state law” — like 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, circumstances or privileges of employment just for the reason that that particular person employed cannabis outdoors of operate. Pursuant to the Appropriate to Privacy in the Workplace Act, violations would permit an employee to recover actual damages, as effectively as penalties, fees, and attorney’s charges for willful and figuring out violations.
WHAT CAN/Need to EMPLOYERS DO?
The law enables 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 workers whom they think to be impaired or below the influence of cannabis in the workplace. According to the law, the employer ought to have a “good faith” belief that the employee:
manifests certain, articulable symptoms whilst operating that reduce or lessen the employee’s efficiency of the duties or tasks of the employee’s job position, like 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 people, or involvement in any accident that final results in critical harm to gear or home disruption of a production or manufacturing approach or carelessness that final results in any injury to the employee or other people.
Note that this list refers to “specific, articulable symptoms,” which means the employer’s great faith belief ought to be primarily based on physical observation of the employee rather than test final results alone. The implications of this are twofold — (1) Employers can not merely rely on a constructive drug test outcome in order to establish a great faith belief that the employee is impaired or below the influence of cannabis (despite the fact that a constructive test outcome would certainly be helpful to reinforce the belief) and (two) that becoming the case, employers want to be capable to determine, document, and articulate outward indicators of impairment from cannabis use. Instruction supervisors and workers on how to spot indicators of cannabis impairment and establishing policies for reporting and documenting these observations would greatest position employers to lawfully take action for impairment. Importantly, on the other hand, if adverse action is taken against an employee, below the new law the employee ought to be supplied a affordable chance to contest the basis of the determination.
Employers can nonetheless keep a “reasonable” drug testing and zero tolerance drug policy, but with this new law, in most circumstances such policies must be revised to prohibit impairment or use/possession of cannabis whilst on the job rather than a blanket, zero tolerance prohibition against cannabis use. Related to Illinois’ health-related marijuana law (the Compassionate Use of Healthcare Cannabis Pilot System Act), the Cannabis Act explicitly offers that it does not influence an “employer’s capacity to comply with federal or State law or trigger it to shed a federal or State contract or funding.” This somewhat circular language concerning federal law is vexing without having additional guidance, due to the fact 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 enable employers that are government contractors or federal grant recipients to keep stricter testing procedures and policies, on the other hand, a quantity of state courts have held that state anti-discrimination laws may possibly nonetheless call for employers to contemplate creating affordable accommodations for health-related marijuana customers. Offered 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 whilst on the job.
- Deliver supervisors and workers with coaching and tools to allow them to spot a cannabis-impaired employee.
- Clarify to workers and managers the employee’s rights when it comes to difficult the employer’s great faith belief of impairment, and the procedures outlining that approach.
A main 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 whilst operating,” it is unclear whether or not a pre-employment constructive drug test alone could serve as a basis to refuse to employ or withdraw an give of employment. Hence, in light of this ambiguity and the prospective danger of liability, employers must reconsider whether or not pre-employment drug testing remains appropriate for their small business.
This is a building region 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, like 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/