By Kevin Scanlan
Certified SCORE Mentor
Legalized Recreational Marijuana Challenges for Employers
The Cannabis Act, legalizing the use of recreational marijuana for residents in Illinois over 21 years of age, went into effect on Jan. 1. Individuals can possess 30 grams of marijuana flower (buds) and 5 grams of marijuana concentrate for their personal use.
The Act provides the most extensive workplace protections for employers of any marijuana legalization statute in the country. (NOTE: the following is provided for informational purposes only and should not be taken as legal advice).
The Cannabis Act is a State law. Use of recreational marijuana is still illegal at the Federal level and companies receiving federal funding or contracts should confirm the impact of this State law on their ability to continue to receive Federal funding. FYI, SCORE is the resource partner of the Small Business Administration, a federal agency. Since a portion of our funding comes from the SBA, SCORE mentors are not allowed to work with clients who want to start a recreational Cannabis business in Illinois.
The 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 when “on call,” as long as the policy is applied in a nondiscriminatory manner.
The Act also amends the Right to Privacy Act which prohibits employers from restricting employee use of “lawful products” away from work. For example, if an employee ingests marijuana legally in Illinois while off-duty but the employer has a drug-free workplace and the employee tests positive for marijuana as a result of a random drug test, the Act should allow the employer to take disciplinary action against employee as per their drug-free workplace policy.
The Act defines when an employer may consider an employee to be impaired or under the influence and allows an employer to discipline an employee based on a good faith belief that the employee is under the influence or impaired. The Act identifies a number of symptoms an employer can consider to support its good faith belief of impairment. Employers should give strong consideration to training supervisors on marijuana-related impairment signs and procedures to follow as a result. The Act provides specific symptoms to look for when making a determination that an employee is “impaired” or “under the influence” of marijuana.
The employer must allow the employee a reasonable opportunity to contest the basis of the determination. Employers are urged to establish a written procedure for employees to contest a cannabis-based disciplinary decision.
This legislation takes employers into unchartered waters. No matter what actions are taken, there will likely be legal challenges which will need to be decided by a State court of law.
