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On January 1, 2020, Illinois will become the 11th state to legalize the recreational sale and use of marijuana. As a result, any Illinois resident 21 years of age or older will be able to legally purchase and possess up to 30 grams of marijuana or the equivalent amount in edibles with up to 500 mg of THC (the intoxicating agent in marijuana).
While the new law poses challenges to Illinois employers, the good news is it does provide leeway to ensure your employees’ recreational usage in no way effects workplace productivity and safety. In fact, the legislation, billed The Illinois Cannabis Act, provides some of the most extensive employer protections compared with the legislation in the other 10 states* that have legalized marijuana.
Here are the top five most common myths and misconceptions tied to the legalization along with the realities of your legal rights in the context of each, and some tips for how to best prepare your business for the impending changes.
Employees may Bring Marijuana to Work, Particularly if They Don’t Consume It.
REALITY: While the law will allow anyone over the age of 21 to possess up to 30 grams, the law also affords employers the ability to continue enforcing, or to implement, Zero Tolerance policies that would prohibit not only the consumption, but also the possession of marijuana in the workplace and at company-sponsored, off-site events.
TIP: Use this change in legislation to take an introspective look at your philosophy toward risk and safety and reexamine your current drug policies to determine if they are in line with that philosophy. Will you adopt a hard-core, or laissez-faire tone? Or somewhere in the middle? Whatever you decide, be sure your policy reflects it and that you’re ready to enforce your policy consistently, as the law requires consistency in application.
The Law Requires Employers to Allow Employees to be Under the Influence of Marijuana in the Workplace.
REALITY: The Cannabis Act does NOT require employers to permit an employee to be under the influence of or use cannabis in the workplace, or while performing the employee’s job duties, or while on call.
TIP: As you roll out your drug policy, be sure to clarify that while the law allows for recreational use in the State, it also affords employers recourse over employees’ recreational use outside the workplace. Also, be sure to clearly define what constitutes your “workplace,” and what constitutes “on call.” For example, does the policy apply to travel, and to those in home offices?
Zero Tolerance Policies Have no Bearing on Employees’ Recreational Use Outside the Workplace on Their Own Personal Time.
REALITY: Actually, this is false. While the Right to Privacy in the Workplace Act precludes employers from pursuing recourse for employees’ legal activities on their personal time, the IL Cannabis Act removes that provision. In fact, the Act makes provisions for employers to enforce drug-free workplace policies and take corrective action—up to, and including termination—even if that use was at home. So, if an employer believes an employee to be impaired on the job from marijuana use at home (either through a visual assessment or drug test), the employer has the grounds to terminate that employee—provided the employer has a Zero-Tolerance policy in place. The bottom line is if you believe an employee to be impaired, you have the legal right to 1) test them and 2) pursue corrective measures—up to and including termination—should your visual assessment of their behavior and performance, along with a drug test, give you reasonable suspicion that they were impaired on the job.
TIP: Communicate. Communicate. Communicate. Over the next few months, finalize your drug policies and begin holding meetings with employees to explain the law, and roll out your policy. Use plain language to explain the implications of employee use—even if on their own time.
Blood Tests are a Definitive Means to Gauge Level of Impairment.
REALITY: While blood tests can detect the presence of THC in the body for up to 30 days after consumption, they are not at all effective at determining impairment at the time of the test. So, if a person smoked 4 hours, or 14 days, prior to a drug test, they’ll likely test positive in both instances. There are several early-trial breathalyzer-type devices, however, that test for the presence of THC on the breath. So while these devices can more clearly pinpoint how recently marijuana was consumed, they do not test for concentration, and therefore level of impairment.
TIP: Blood tests can only show if marijuana was consumed, but not a person’s level of impairment. Therefore you should train your managers to look for visual signs of impairment amongst their team members. And when a manager believes someone is impaired, they need to understand the procedure for documenting these visual cues, and for sharing that information with the employee in the presence of a witness as part of a clearly defined corrective action process.
If an Employee is Found Impaired, I Have to Fire Them.
REALITY: This is false. The most important consideration is that you enforce your policy consistently; you can’t give one employee an “out” and terminate another for the same infractions. While the IL law does allow for termination, it also suggests the employer provide corrective action measures for employees who are believed to be impaired in the workplace. What the law does require is that employers give employees a clear path for contesting the basis of determining alleged impairment that resulted in disciplinary action.
TIP: As part of your policy rollout, be sure to clearly state how you will go about determining impairment (for example, impairment can be based on visual assessment of behavior only), and lay out the steps an employee would need to follow to contest any allegations of impairment in the workplace.
As you can see, the application of this new law is multi-faceted and requires both a solid understanding of the intricacies of the Act, along with a thorough review of both your corporate philosophy and drug-use policy. At Alper Services, our SVP of Human Resources is available to ensure you’re prepared. Contact Cynthia Elstien to conduct a thorough review and update of your human resources policies as well as create an employee rollout plan, CElstien@AlperServices.com.