This summer, Governor J.B. Pritzker signed into law the Cannabis Regulation and Tax Act (the “Cannabis Act”), which takes effect January 1, 2020. Employers may want to take a look at their policies and procedures as they relate to drug testing their candidates and employees and how they discipline employees who test positive for cannabis.

The Cannabis Act provides that individuals who are 21 years of age or older may lawfully possess, consume, use, purchase, obtain, and transport cannabis for personal use. Notably, however, cannabis continues to be illegal under federal law. While the Cannabis Act legalizes recreational marijuana use, it explicitly allows employers to do the following in order to maintain a safe drug-free workplace:

• Enforce zero-tolerance or drug-free workplace policies;
• Implement and enforce employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call, provided that the policy is applied in a non-discriminatory manner; and
• Prohibit employees from being under the influence or using cannabis in the workplace (this applies to the employer’s premises, including any building, real property, and parking area under the control of the employer, as well as employer vehicles), while performing job duties or while on-call.

Despite these explicitly employer-friendly provisions, the Cannabis Act makes disciplining employees for marijuana-use tricky. Specifically, before disciplining an employee that is perceived to be under the influence or impaired by cannabis, the Cannabis Act states employers must have a “good faith belief that the employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s job performance.”  The Cannabis Act specifies this burden may be met by changes in the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery, disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property, disruption of a production or manufacturing process, or carelessness that results in an injury to the employee or others. The Cannabis Act also requires that employers “afford the employee a reasonable opportunity to contest the basis of the determination.”

Perhaps the most complex portion of the Cannabis Act is that it amends the Illinois Right to Privacy in the Workplace Act (“IRPWA”), which prohibits employers from discriminating against employees for their off-duty (legal) behavior. Now, pursuant to the Cannabis Act’s amendment, those behaviors include use of cannabis. Under the IRPWA, employees may file a private right of action and be entitled to not only damages, but also recovery for statutory penalties, attorneys’ fees and costs, where an employer takes adverse action for the employee’s off-duty and off-premise cannabis use.

The reason this poses a particular challenge for employers is because there are no existing drug tests that can test when someone last used marijuana. For example, a positive marijuana test may only mean that the employee used marijuana while off-duty and off-premises days (or weeks) ago – not that the employee used (or is impaired) while at work. Or it could mean the employee is still impaired. There’s no way to know solely based off a cannabis test.

Best Practices for Employers to Put into Effect Now

In preparation, employers should consider taking the following actions now:

• Review existing drug testing policies, update policies accordingly and train managers and supervisors regarding any policy changes.
• Develop discipline policies specifically for cannabis use and train managers and supervisors on the appropriate grounds for discipline and procedural requirements for discipline.
• Develop specific procedures for documenting concerns that an employee is under the influence of cannabis.
• Train managers and supervisors on the specific cannabis use/impairment symptoms referenced in the Cannabis Act and how to document those observations in order to provide evidentiary support of “good faith.”
• Review/revise policies with respect to pre-employment applicant drug testing.