As Illinois prepares to join the growing ranks of states that have legalized recreational use of marijuana, employers in the Land of Lincoln may find it difficult—if not impossible—to legally maintain a drug-free workplace.  Signed into law on June 25, 2019 by Governor J.B. Pritzker, the Illinois Cannabis Regulation and Tax Act (“CRTA”) goes into effect on January 1, 2020.  If you employ workers in Illinois, you now have less than six months to decide whether and how you will continue testing for marijuana.  You will also need to lay the groundwork so that you can reduce the risks associated with disciplining and/or discharging employees who appear to be impaired—due to cannabis consumption/use—while at work.  While the CRTA lists a number of indicia of impairment that may be used to determine if someone is under the influence, proving that an employee is impaired will likely be easier said than done.  Even then, the CRTA requires that you give the allegedly impaired employee an opportunity to respond.  When and how you do that, though, remains to be seen.

What the Law Does and Does Not Require

Beginning January 1, 2020, Illinois residents over the age of 21 can legally buy (in licensed stores), possess or use cannabis and cannabis products.  Possession is limited to: (1) 30 grams of raw cannabis; (2) cannabis-infused products containing no more than 500 mg of THC; or (3) 5 grams of cannabis product in concentrated form. Non-residents may purchase half those amounts (i.e., 15 grams of cannabis, 250 mg of THC in a cannabis-infused product, or 2.5 grams of concentrated cannabis product).  Patients using cannabis for medical reasons, meanwhile, will be allowed to purchase cannabis seeds and grow up to five plants at their residence. The CRTA, however, limits home growth to five plants per household, regardless of the number of residents who are 21 or over.  These plants must be secured and out of view by the public. While medical cannabis patients may keep what they grow, the CRTA possession limits apply when they leave their residence.  Furthermore, they cannot sell what they grow unless they do so as part of a licensed cannabis business.

While marijuana remains a Schedule 1 drug under the federal Controlled Substances Act, the CRTA explicitly amends the Illinois Right to Privacy in the Workplace Act—a law that prohibits employers from taking adverse action against employees who use lawful products outside of the workplace during nonworking hours—by defining “lawful products” to include any product that is legal under state law.  Because cannabis will now be a lawful product in Illinois, an employer that fires an employee relying solely on a positive drug test will presumably run afoul of the law because there is no way at this time to tell whether the employee was high at work or simply consumed cannabis at her cousin’s birthday party the prior weekend.  The CRTA provides that you may consider an employee impaired by, or under the influence of, cannabis while at work if you have a good faith belief that the employee has manifested specific, articulable symptoms while working that decrease or lessen his/her performance.  While the law, on its face, does not so state, it certainly appears that, going forward, a positive drug test alone is not a sufficient reason to take an adverse action against an employee.

That said, the CRTA does not prohibit you from adopting or enforcing “reasonable” zero tolerance or drug-free workplace policies, nor does it require you to permit an employee to be under the influence of cannabis while at work on or call.  The law defines “on call” as the time when an employee is scheduled, with at least 24 hours’ notice, to be on standby or otherwise responsible for performing work.  The CRTA likewise does not bar you from testing your employees for cannabis or cannabis products, or place limits on your ability to discipline or terminate an employee who violates your workplace drug (and alcohol) policies.  Last but not least, the CRTA does not apply to or affect drug testing programs administered pursuant to federal Department of Transportation (“DOT”) or Department of Defense (“DOD”) guidelines; if you have employees whose conduct is governed by these agencies, you should continue to administer and enforce your drug testing programs just as you have always done for those employees.

Establishing Impairment While at Work

The CRTA lists, in no particular order of importance, the following as indicia or symptoms of an employee’s impairment by cannabis or cannabis products: (1) speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; (2) disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property; (3) disruption of a production or manufacturing process; or (4) carelessness that results in any injury to the employee or others.  Once again, the law provides no guidance as to the necessary degree or extent to which an employee is compromised in these areas to be considered impaired.  We can only hope that evidence of serious deficiencies in areas such as dexterity, agility or coordination, just as evidence of any disregard for safety or carelessness, will suffice to be deemed an adequate reason to discipline or discharge.  In any case, assuming you do in fact conclude that one of your employees was impaired while at work, you’re not free to act—the CRTA requires that you give that employee a “reasonable opportunity to contest” the basis for your good faith belief.  The CRTA, unfortunately, does not define what constitutes such an opportunity.

What You Should Do Now

Although there is much to do in the next five-plus months, employers should be sure to at least take the following five steps now:

1. Dust off your workplace drug policies and evaluate whether and how they may need to be revised in light of the CRTA. Remember, the CRTA does not in any way impact DOT- or DOD-mandated drug and alcohol testing procedures that apply to your employees.
2. Unionized employers should, of course, review applicable provisions in their collective bargaining agreements and be prepared to discuss the issue with the unions representing their employees. While some unions may resist certain changes, you should endeavor to remind them that it is in the best interests of their members to ensure a drug-free workplace—particularly in settings where an impaired employee poses a significant threat to the safety of others.
3. Develop a set of procedures—written, preferably—to be followed when evaluating and documenting employee impairment while at work. Then, train managers and/or supervisors on how to carry out the procedures.  While you may focus on cannabis and cannabis products, remember that the CRTA does not limit your ability to act if employees test positive for other controlled substances.  Include with any such procedures a means by which employees can contest your conclusion that they were impaired while at work.
4. Implement controls to help ensure that your policies are consistently enforced throughout your organization; while this is important regardless of the size of your organization, it is essential for larger employers with multiple locations.
5. Decide whether you will continue screening for cannabis during pre-employment and random drug testing given that you may not otherwise be able to establish impairment at the time of the test.

Employers should expect the law to evolve in Illinois and beyond as more states legalize marijuana and the courts struggle to keep up with the times.  Until then, don’t hesitate to reach out to our team of labor and employment attorneys with questions.