BELLEVILLE — Ahead of the new year, local businesses and employers across Illinois are trying to determine how legal recreational marijuana will impact them.
The law change, which came only six months ago, is forcing many employers to rethink how their workplaces handle drug policy and testing.
Lawmakers in Springfield wrote parts of the Cannabis Regulation and Tax Act to protect a workplace’s existing drug policy, but many employers are still unclear about their responsibilities.
“I think there are some guidelines and answers — 100% clarity? I would say ‘no,’” said Ernest White, a human resource officer for the Illinois Center for Autism.
An employee’s occasional use of legal cannabis doesn’t worry White as much as someone who comes to work high multiple times, he said.
“How do we deal with repeated offenders?” he said. “How do we discipline them properly without falling into, ‘This is legal, so now I’m going to sue because you’re violating my legal right to use this.’”
White’s concerns underscore the reality employers in the state face come Jan. 1: Adults 21 years and older in Illinois will be able to legally use marijunana — a drug that has been prohibited for decades — in private.
On the surface, Illinois’ new cannabis law appears to conflict with the state’s Right to Privacy in the Workplace Act, said Benjamin Wesselschmidt, an employment lawyer with the Sandberg Phoenix law firm in St. Louis.
“The act provides in a general way that employers can't discipline employees for using substances outside of work,” he said. “So, you can't control an employee's out-of-work conduct with respect to legal substances.”
State lawmakers added recreational cannabis to the list of protected substances, which includes alcohol and nicotine. But cannabis is more complicated because current tests for it don’t reveal an intoxication level, as they do for alcohol.
“Tests for cannabis aren’t very accurate,” Wesselschmidt said. “We know that you can do hair tests or urine tests, but that can test for use going back as many as three weeks.”
It may sound like companies in Illinois won’t be able to stop workers from consuming marijuana, even on the job. But that’s not true. State lawmakers wrote provisions into the cannabis law that are designed to protect employers and their workplaces.
What does the law say and protect?
The Cannabis Regulation and Tax Act provides broad protections to employers who want to keep their workplaces drug-free. Managers can bar employees from storing marijuana onsite and consuming it while at work or on-call.
The law even provides a list of symptoms supervisors should look for if they suspect one of their employees is high on the job.
These signs are used to establish a supervisor’s “good-faith belief” that one of their workers was impaired by marijuana at work — if the boss decides to discipline them, Wesselschmidt said.
“Then the burden shifts to the employee, and they have to have an opportunity to respond to the disciplinary action,” he said.
Employers can keep strict zero-tolerance or drug-free policies and can use pre-employment and random drug testing to enforce them. The key is that tests apply evenly to all workers.
“If you’re subjecting somebody to a drug test on the basis that, ‘I kind of think that guy is using drugs,’ that’s a terrible idea,” Wesselschmidt said, adding that kind of action will probably result in a lawsuit.
Applying these policies in a nondiscriminatory manner is critical because of marijuana’s history, said Narcisa Przulj, also an employment lawyer at Sandberg Phoenix.
“There’s an entire racial undertone to the war on drugs,” she said. “You need the checks and balances to make sure you’re not allowing implicit and explicit bias to play a hand.”
‘Trial and error’
The broad protections employers have to restrict cannabis use are good news for workplaces that depend on safety, like construction projects.
“You can't have a big construction site and have someone out there that is impaired operating a piece of equipment that hits somebody, or runs over somebody,” said Donna Richter, CEO of the Southern Illinois Builders Association. The association supports the construction industry in the area with policy ideas, industry best practices, workforce development and other initiatives.
“You can’t take the chance of having someone out there that could kill five people.”
But even with these protections, Richter said she is cautious about what will happen in the new year regarding cannabis, jobs and firings.
“There’s not a lot of case law out there about how to handle a situation like this,” she said. “Nobody knows what to expect, and I think it’s all going to depend on that first lawsuit. It’s going to be trial and error.”
Workplaces that don’t directly depend on worker safety may elect for less strict policies, especially considering the message that testing for a legal substance sends to workers.
“I think it’s a soul-searching moment that employers need to go through,” he said. “Am I the kind of workplace that I want to be asking these questions of my employees?”
The social stigma around marijuana use has declined since other states legalized recreational use. And many employers are realizing this.
“We cannot control what you’re going to do offsite, nor should we be that controlling of our employees,” said Tyler Vitale, owner of the Weingarten in Belleville. “If they’re going to be using a legal substance, it’s going to be their prerogative.”
Vitale worked in Colorado when the state legalized recreational cannabis in 2014.
“It didn’t seem to make much of a difference throughout the workplace,” he said. “People were respectful.”
It’s up to individual employers what they decide to enforce. Employees should know what the company policies are, and what they can be disciplined for and what the procedures are in that case, Wesselschmidt said.
Eric Schmid covers the Metro East for St. Louis Public Radio as part of the journalism grant program Report for America, an initiative of the GroundTruth Project. Follow Eric on Twitter: @EricDSchmid.
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