The Cannabis Regulation and Tax Act (the "Act") is set to take effect statewide on January 1, 2020. With it will come a host of changes for Illinois employers, including new protections for employee off-duty use and new requirements for taking disciplinary action against employees suspected of being under the influence in the workplace.
What is Unchanged?
First and foremost, the Act makes clear that employers are still free to create and enforce zero tolerance and drug-free workplace policies. Specifically, employers can create and enforce policies that prohibit employees: (i) possessing or using marijuana in the workplace; and (ii) being under the influence of marijuana in the workplace, while performing their job duties or while on call. An employee is "on call" when the employee is scheduled (with at least 24 hours' advance notice) to standby or otherwise be responsible for completing tasks at the workplace or a previously designated location.
The Act also makes clear that employers are still permitted to drug test employees as a means to enforce workplace policies. That said, and as discussed in more depth below, the Act's many changes will cause some employers to question whether there is value in continued drug testing.
The Act further provides that employers are free to discipline or terminate employees for any violation of a policy prohibiting the use of marijuana in the workplace or being under the influence in the workplace. Unfortunately, the Act also puts some procedural limitations on this right, which are discussed below in more detail.
Finally, the Act makes clear that nothing in the Act is intended to interfere with federal, state or local restrictions on employment or otherwise alter an employer's compliance with federal or state law, nor shall anything in the Act be construed as requiring the employer to lose federal or state contracts or funding. Consequently, employers with federal contracts or in federally regulated industries requiring a drug-free workplace should speak with legal counsel about what is and is not required for their workforce. Unfortunately, there is no exception to the Act for safety sensitive positions, unlike in some other states.
What Has Changed?
One of the biggest changes is the reference to marijuana as a "lawful product" under the portion of the Right to Privacy in the Workplace Act, 820 ILCS 55/1 et seq., that prohibits discrimination against employees for using products that are lawful under state law 820 ILCS 55/5. While marijuana is still illegal under federal law, its legal status under state law and inclusion in the "Lawful Products" law leaves employers unable to discipline, "refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment" because of the individual's off-duty use of marijuana. Id.
This new protection is generally reconcilable with the Act's affirmative statements granting employers the right to enact drug-free workplace policies that prohibit the use or possession of marijuana in the workplace and working under the influence of marijuana. While off-duty use is protected, there is no protection for use, possession or impairment in the workplace.
With a new emphasis on distinguishing between off-duty and on-duty use, the Act appears to create a "good faith" requirement for taking disciplinary action against an employee suspected of being under the influence in the workplace. Specifically, the Act provides that an employer may consider an employee impaired or under the influence of marijuana in the workplace if it has a good faith belief that the employee is manifesting specific, articulable symptoms of impairment in the course of his/her job duties and those symptoms decrease the employee's performance of his/her duties. The symptoms noted in the Act include changes in the employee's coordination, speech, demeanor, or physical dexterity, as well as unusual or irrational behavior, and negligence or carelessness in operating equipment. Additional signs include disregard for the safety of others or themselves, a disruption in production or carelessness that results in injury.
Drug testing cannot help in meeting this good faith requirement as the current testing technologies only show recent use and cannot be relied upon to prove current impairment. This makes it essential that employers train their management teams on how to properly observe and document the symptoms of impairment (as well as the decrease in job performance they are causing) as perhaps the only viable means for taking disciplinary action based on suspected impairment in the workplace.
Employers must also set up an appeals process in order to allow disciplined employees a reasonable opportunity to contest the determination that they were under the influence in the workplace. This necessarily will require a written policy in order to make sure employees are aware of their right to contest the determination and the process for doing so. This appeal right underscores the need to properly train your management team on the right way to observe and document suspected impairment.
Is There a Private Right of Action for Employees to Challenge Violations of the Law?
The answer is yes and no. First, the Act makes clear that it is not creating an implied cause of action related to: (i) an employer's good faith belief that an employee violated a workplace policy through the use or possession of marijuana in the workplace; (ii) disciplinary action based on the employer's good faith belief the employee was impaired in the workplace; or (iii) liability, injury or loss to a third party if the employer neither knew nor had reason to know an employee was impaired by the use of marijuana.
Less clear is whether there is an implied cause of action when an employee can establish that the employer acted in bad faith and obvious disregard for the employee's rights under the Act. Specifically, the Right to Privacy in the Workplace Act grants employees a cause of action against employers related to discrimination based on the use of a lawful product. Presumably, an employee arguing that he/she was not actually impaired in the workplace will argue that his/her only use was off-duty and that he/she has a cause of action under the Lawful Products law as a result. Such a lawsuit will necessarily require proving that there was no legitimate basis for the employer to believe the employee was under the influence in the workplace, which strangely mirrors the very cause of action the Act claims does not exist. Only time will tell where courts draw the line on what is and is not a viable cause of action under the Lawful Products law.
Prior to January 1, 2020, Illinois employers should:
- Communicate to employees your company's workplace policy with regard to marijuana use. Make clear that the new law only addresses what employees do during their off-duty time and your company's policies on drug use in the workplace govern what is and is not permissible in the workplace.
- Revise your policies on drug use in the workplace to reflect the legalization of marijuana in Illinois. Your policies should make clear your company's position on the use or possession of marijuana in the workplace as well any prohibition of employees working under the influence of the same. If you will continue to drug test, make sure your policy is clear on this point.
- Create a legitimate appeal process for employees seeking to challenge the good faith determination that they were under the influence of marijuana in the workplace. Commit this right and the appeal process to writing, so that employees are aware of the right as well as how to exercise it.
- Train your management team on how to properly observe and document the symptoms of impairment in the workplace and their impact on the employee's job performance. Consider whether there is a need for a formal approval process for terminating employees believed to be under the influence in the workplace in order to ensure consistency.