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<a href="https://www.goldbergkohn.com/people/david-e-morrison/">David Morrison</a> has authored "Ill. Recreational Cannabis Law Brings Risks For Employers," published in the December 16, 2020, edition of Law360. With the permission of Law360, the full article is published below.

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On Jan. 1, 2020, the Illinois Cannabis Regulation and Tax Act will take effect and Illinois will become the 11th state to legalize recreational marijuana use for citizens over 21 years old. This follows the passage in 2013 of the Compassionate Use of Medical Cannabis Pilot Program Act, which had legalized medical marijuana in the state. As Illinois evolves from a medical-use to a recreational-use state, there are many complicated labor and employment issues and potential landmines that Illinois employers will immediately face.

The first issue Illinois employers will confront is whether they can still conduct drug tests for marijuana use in the workplace even if its use is now legal in Illinois. Under the Cannabis Act, employers may still prohibit an employee from being "under the influence of or us[ing] cannabis in the employer's workplace or while performing the employee's job duties or while on call." Employers are permitted to take adverse employment action so long as they have a good faith belief of such use.

How can Illinois employers show that they had a good faith belief of marijuana use or of an employee working under the influence of marijuana? The Cannabis Act requires Illinois employers to observe the effects of influence, meaning the employee must manifest "specific, articulable symptoms while working that decrease or lessen the employee's performance of the duties or tasks of the employee's job position." Thus, an employer would effectively need probable cause or reasonable suspicion before insisting on a drug test for marijuana.

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To avoid the many landmines that could be set off by virtue of having an unprepared management team in place, employers should engage in training now so that supervisors are made capable of assessing the typical signs of being under the influence. What does that mean? Well, the Medical Marijuana Act previously provided a full description of when an employer may consider a qualifying patient/employee to be impaired:

When he or she manifests specific, articulable symptoms while working that decrease or lessen his or her performance of the duties or tasks of the employee's job position, including symptoms of the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment or machinery, disregard for the safety of the employee or others, or involvement in an accident that results in serious damage to equipment or property, disruption of a production or manufacturing process, or carelessness that results in any injury to the employee or others.

Training supervisors to look for these symptoms is key to establishing a good faith basis for seeking to conduct a drug test.

Observing signs of impairment does not end the inquiry though. Illinois law requires employees to be given a reasonable opportunity to contest the basis for being deemed under the influence if an employer claims it has a good faith belief.

Relatedly, Illinois employers also may still use random drug tests to comply with U.S. Department of Transportation regulations, or to not jeopardize federal contracts or grants. Employers may also employ a reasonable zero-tolerance or drug-free workplace policy. Under such policies, random drug tests for cannabis may be permissible. Further, employers may implement policies regarding smoking, consumption, storage or use of marijuana in the workplace.

But the confines of what a reasonable policy is have not yet been addressed by the courts. Nonetheless, the specific drug test used should be able to detect current use if possible, and the law requires an employer to provide the employee with a reasonable opportunity to contest the basis of being deemed under the influence.

To avoid being caught with an outdated policy, Illinois employers should review all workplace policies that may be implicated by cannabis use (health and safety, privacy, drug testing, disability accommodation, etc.).

It also is a good practice to hold employee training sessions to educate the workforce on what will be tolerated and what will not — just because it is legal to smoke marijuana starting on Jan. 1, 2020, does not mean that your employees can show up to work high. This should be obvious, but it’s worth emphasizing with all personnel. Employees who are new to marijuana may not know their limit, and accordingly may not have a precise handle on how even infrequent use could impact their work performance.

The issue of terminating an employee who uses marijuana outside of the workplace is also sure to become a hot topic in Illinois. The Cannabis Act amends the Illinois Right to Privacy in the Workplace Act, which prohibits an employer from firing an employee for using lawful products away from work (such as smoking tobacco), to mean "products that are legal under state law."

It is fascinating to see this privacy law resurface into relevance, because I wrote my law review article on these state privacy laws almost 30 years ago.[1] Back in the 1980s and early 90s, employers were firing employees just for being smokers — ostensibly because their smoking habits could increase the employers' health care costs. However, the tobacco industry partnered with the American Civil Liberties Union (strange bedfellows indeed) to pass a wave of privacy laws around the country to prohibit the consideration of lawful activity outside of the workplace in making employment decisions.

With marijuana now joining the ranks of lawful products under state law, Illinois employers must be careful not to run afoul of other state laws when confronting suspected marijuana users. Courts have not yet grappled with the Cannabis Act's amendment to the Privacy Act — and there are several arguments that could be made to suggest that the Legislature was not attempting to ban drug testing or prevent employers from maintaining drug-free workplaces.

For instance, the law does not expressly prohibit preemployment drug screenings. Illinois employers should obtain legal advice before employing drug screen tests to ensure that their policy and tests pass legal muster.

Another potential landmine for Illinois employers is determining whether they must provide a reasonable accommodation in the workplace to employees treating disabilities with medical marijuana. In Illinois, the Cannabis Act does not specifically set forth an obligation to accommodate for the use of medical marijuana, but the Medical Marijuana Act allows patients diagnosed with medical conditions to appropriately use medical marijuana.

While courts have concluded that the federal Americans with Disabilities Act does not require an accommodation for the use of controlled substances (like marijuana), the issue is treated differently at the state court level. Courts across the country have found that the use of medical marijuana may be a reasonable accommodation under state law so long as it does not occur in the workplace.

Of course, the qualifying patient's medical conditions that entitled them to a medical marijuana card are almost certainly disabilities under Illinois and federal law. So, Illinois employers must seek advice before terminating an employee who raises the need for an accommodation resulting from a recognized disability for which medical marijuana may be prescribed.

The employment law landscape related to recreational marijuana use in Illinois is mine-filled. Given the complexities of the many overlapping state laws at issue, to avoid being the next company named in a headline-grabbing lawsuit, it is best to seek guidance before the Cannabis Act takes effect Jan. 1, 2020, and certainly before confronting and disciplining an employee for suspected marijuana use.

[1] See 26 University of Michigan Journal of Law Ref.,245 (1992).

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