What Your Small Business Needs to Know About Marijuana Legalization in Illinois

In the Rearview Mirror: Looking Back at 30 Years of Synergy with Founder Jon Skulborstad
September 24, 2019
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What Your Small Business Needs to Know About Marijuana Legalization in Illinois

As of January 1st, 2020, recreational use of marijuana (also known as cannabis) will be legalized in Illinois. Regardless of where you stand on the law, it’s raised countless questions for business leaders across the state. How, if at all, will this impact your current policies for employees? Here’s everything that your small business needs to know about marijuana legalization in Illinois.

The Legal Jargon

The Cannabis Regulation Tax Act protects employees’ right to use marijuana recreationally during off-duty hours. The Act regulates cannabis in a manner similar to that of alcohol: users must be over 21 and are limited in how much they can possess at one time. Once in effect, the Act prevents employers from taking adverse employment action against a worker for use of legal marijuana products in their personal time. That said, the drug remains a Schedule 1 controlled substance at the federal level, so employers are still able to invoke drug testing and zero tolerance policies as long as they effectively communicate these guidelines to all employees and are non-discriminatory in their enforcement.

How Can Employers Respond?

The Act has numerous suggestions for what to consider when revisiting internal workplace drug policies in anticipation of the new year:

  • Employers may ban the use of marijuana at the workplace or while on-call, so long as the employee is given 24 hours’ notice
  • Employers may discipline or discharge employees if they believe on a “good faith” basis that the employee is under the influence of marijuana while performing job duties. This means witnessing a variety of symptoms that worsen an employee’s performance, such as:
    • Impairment of speech or coordination
    • Unusual behavior or demeanor
    • Negligence or carelessness in operating equipment or machinery
    • Disregard for their own safety of the safety of others
  • Employers must allow employees to contest the basis for the employer’s “good faith” determination that the employee was under the influence

Potential Exposure for SMBs

In addition to the aforementioned policy suggestions, employers are legally allowed to administer drug tests to their staff. Unfortunately, drug tests cannot accurately determine if someone is currently under the influence – cannabis may appear on a drug screen up to 30 days after consumption. Test results vary based on an amalgamation of factors, like body fat, frequency of use, amount of consumption, and test sensitivity. This creates a new risk for employers: an employee who fails a drug test on Monday may claim they had used marijuana days, or even weeks, prior.

Even if the employer has a “good faith” belief that an employee is under the influence of the drug, employees are permitted a “reasonable opportunity” to contest the accusation of impairment. The definition of reasonable opportunity is opaque and up to the discretion of the employer. If an employer lacks a “good faith” basis for disciplinary action or hinders an employee’s opportunity to contest a claim, the employer becomes vulnerable to liability for damages, attorneys’ fees, statutory penalties, and more.

Prepare Your Workplace for the Cannabis Regulation Tax Act

Although 33 states and the District of Columbia have legalized marijuana in some form, more than one-third of business owners with fewer than 500 employees have yet to make preparations for the new legislation. As the clock ticks closer to January 1st, take initiative to ready your business by:

  • Training managers to recognize the symptoms of cannabis use
  • Developing documentation procedures for “good faith” reports
  • Creating a policy that defines “reasonable opportunity” for employees to prove they weren’t under the influence
  • Communicating all policy changes and potential consequences with your employees
  • Partnering with a PEO like Synergy that ensures federal, state, and local legal compliance

Staying on top of ever-evolving legalization is a complex, time-consuming task. Learn more about how Synergy’s trusted HR solutions can help you can safeguard your livelihood right now.

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