NEWSFLASH! Burning Questions: The Effects of Recreational Cannabis Use on Employers
Authors: Audrey E. Gamble, Esquire and Alex W. Norlander, Esquire
Illinois is set to become the first state to legalize recreational use of cannabis through legislative action. The Cannabis Regulation and Tax Act (the “Act”), which has been adopted by the Illinois General Assembly and was signed into law by Governor Pritzker on June 25, 2019, will legalize the sale, possession, and use of marijuana for recreational purposes by adults age 21 and older as of January 1, 2020.
While many states have legalized cannabis use in some form, it remains classified as a Schedule 1 drug regulated by federal law under the Controlled Substances Act. Such conflict between federal and state law has created confusion surrounding drug policies in the workplace. Even in states where recreational cannabis use is legal, federal employment laws such as the Drug Free Workplace Act, the Americans with Disability Act, the Family and Medical Leave Act, and the Federal Employees’ Compensation Act may apply, and will impact employer and employee rights.
A Colorado Supreme Court Case from 2015 exemplifies the high stakes conflict between state and federal law. Colorado’s off-duty conduct law prevents employers from terminating employees for engaging in “lawful activities” outside of work. However, in a case brought by an employee who was terminated for marijuana use, the court ruled that he was not protected by this statute because marijuana use is illegal under federal law. In Illinois, lawmakers steered clear of this issue by amending Illinois’ own off-duty conduct statute, the Right to Privacy in the Workplace Act, to clarify that an employee’s use of “lawful products” during non-working hours is protected if the products are legal under state law – including recreational and medical marijuana.
A dilemma still remains employers in Illinois. While drug free workplace policies are still permitted, employers now must establish that the cannabis use or intoxication occurred while the employee was in the workplace or “on call.” Because cannabis use during non-working hours can result in an employee failing a drug test, this method alone is not sufficient grounds for termination without other evidence that the employee is impaired or under the influence of cannabis. The Act also provides that an employee can be disciplined based on an employer’s “good faith belief” that the employee is under the influence of cannabis. However, this fact-specific standard will likely invite legal challenges to termination based upon cannabis use.
To avoid getting burned, employers should re-examine their current human resource policies relating to drug use and drug testing.
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