Weed while working? Say What?

by Nicole Sandage, Manager for HR Virtual Services

Some people are relaxed now that legislation has changed in favor of marijuana. However, we have been listening and many employers remain rather concerned. Don’t worry, we have you covered! You do have rights as an employer too.

As we draw closer to 2020, there is a lot of buzz on how the legalization of recreational marijuana in Illinois will impact the workplace. Let’s take a look at what this legislation means for employers and how employers can best prepare for it becoming effective on January 1st, 2020.

The first thing to note is that although Illinois is legalizing recreational marijuana use for adults 21 years of age or older, marijuana is still an illegal controlled substance under federal law. The legislation for Illinois makes marijuana a lawful product at the state level and with some exceptions, places marijuana in the same category as alcohol. Under the Illinois legislation, employers as of January 1 are unable to discriminate against job applicants and employees for off duty use of lawful products. The exception to this is employers that fall under the Federal Drug Free Workplace Act. This includes for example federally regulated employers (Department of Transportation) and employers with government contracts. Those that operate as such are likely already well aware of their compliance requirements. 

So what does that mean for employers? Employers will no longer be able to deny employment to a candidate or take action against an employee because of marijuana use outside of work or when not on call. 

That being said the Illinois legislation does not prohibit employers from the following actions:

• Adopting a reasonable zero tolerance or drug free workplace policy or employment policies for drug testing, smoking, consumption, storage, or use of marijuana in the workplace or while on call as long as policies are not applied in a discriminatory manner. On-call is defined as when the employee is scheduled with at least 24 hours’ notice by the employer to be on standby or responsible to perform work.
• Prohibiting employees from being under the influence at work or while on call.
• Discipling employees for violating zero tolerance or drug free workplace policies or employment policies.

The big question that employers have is can I terminate or discipline employees that are believed to be under the influence at work. The answer to that question is yes, however, employers likely will not be able to take action against employees who test positive for marijuana if the employer cannot demonstrate that the employee was under the influence at work. This is because drug testing for marijuana at this time cannot pinpoint the exact timing of when an individual used marijuana. Therefore, it is recommended that as an employer you take the following actions before implementing an employment action. 

 

• Have a policy in place that has been communicated that prohibits such behavior in the workplace.

• Have a reasonable cause for suspicion that the employee is under the influence in the workplace.

• Have thorough documentation of reasonable suspicion by two managers that have observed the employee first hand.

• Give employees a reasonable opportunity to contest the employment action BEFORE the employment decision is made and action is taken. Employers may need to place an employee on suspension while the internal review or investigation is conducted.

 

At HRBOOST®, we recommend the following steps employers should take to be prepared for this new legislation:

 

• Review hiring practices.

• Review and revise policies and handbooks to ensure compliance with the new legislation.

• Review drug testing procedures for hiring, post-accident, random and/or reasonable suspicion.

 

• Ensure that you have a process to provide a reasonable opportunity for an employee to contest employment action that will be taken due to reasonable suspicion that an employee under the influence or impaired by marijuana in the workplace.
• Train managers on the signs of decreased employee performance in the duties or tasks of the employee’s job that indicate that an employee may be under the influence.
  • This could include, but is not limited to:
    • Decreased performance in physical attributes such as speech and coordination
    • Change in demeanor
    • Irrational or unusual behavior
    • Disregard for safety
    • Workplace accident causing injury or property damage
    • Loss of focus
    • Missing work
    • Odors
    • Red eyes
• Train managers on best practices for handling and documenting suspicions that employees are under the influence at work.

There will likely be adjustments to how employers navigate this new legislation as we go through 2020 and beyond as we all see the true impact and implications in the workplace. For instance, Brian Schwartz of Klein Paull Holleb & Jacobs, Ltd. recently avised that, “On November 14 the Illinois legislature passed amendments to the new law which will substantially change the law in the event Governor Pritzker signs the amendments. The amendments make clear that employers CANNOT be sued for “actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.” The legislature has 30 days to send the bill to the Governor who then has 60 days to sign.”  Therefore, the top recommendation is to work with your trusted HR advisor, employment attorney and/or drug testing partner to stay apprised of any updates to navigating marijuana in the workplace. At HRBOOST® we are not attorneys but we can certainly help you with policy development, process review and training. Give us call, we are always on standby! Be proactive as consistency will be critical to your operational success.