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