FAQ on Employment-Related Issues with Adult Use of Cannabis
We have been getting a number of questions from our local government clients about employment-related issues with the upcoming legalization of cannabis in Illinois. The Workplace Report with Ancel Glink (our sister blog on labor and employment issues) recently posted a very helpful "FAQ" on this very issue, answering a number of these questions. You can read the blog post on that blog here or below. Don't forget to visit The Workplace Report with Ancel Glink and subscribe!
The unknown impact of adult-use cannabis and the workplace
remains a rich source of discussion among employers and employees alike. Many
of our clients ask similar questions in anticipation of the new legislation.
Below is a compilation of the most frequently asked questions regarding
adult-use cannabis in Illinois after January 1, 2020:
Can we still have a zero-tolerance employee
drug policy?
Yes, insofar as your policy prohibits being under the influence
of alcohol or drugs while at work, the legalization of cannabis for adults
changes nothing. Since cannabis has behavior-altering effects, you can and
should treat it like alcohol and prohibit employees from being under the
influence while at work.
Should we still test for cannabis during
post-employment drug and alcohol screens?
Testing decisions are the tricky part for employers. Because
cannabis metabolizes slowly and at different rates for different individuals,
it may take a month or more for a person to rid their system of evidence of
cannabis use. This is long after the effects of cannabis have dissipated.
Unlike alcohol, which people generally metabolize quickly, positive tests for
cannabis use are highly unreliable in determining whether an employee is under
the influence of cannabis while at work. While nothing prohibits an employer
from testing for cannabis use as part of a post-employment drug screen,
disciplining an employee solely on the basis of a positive test result for
cannabis likely violates the Right to Privacy in the Workplace Act which
prohibits any adverse employment action against an employee for their off-duty
legal activities. Just as an employer cannot discipline an employee for having
an alcoholic beverage off duty or smoking cigarettes or any other behavior that
the employer may prohibit on duty, an employee who uses cannabis recreationally
and consistent with the statute while off duty cannot be disciplined for such
use.
A positive test for cannabis can be used as additional evidence
of being under the influence while at work only as secondary or confirmatory
evidence when the employer has established reasonable suspicion of such use. If
an employer has reason to suspect that an employee is impaired by cannabis
while working, management should clearly document all of the observed objective
factors that support this suspicion. The law provides some guidance with regard
to reasonable suspicion of cannabis impairment. Symptoms of impairment may
include speech issues, problems with physical dexterity, agility, coordination,
demeanor, irrational or unusual behavior, negligence or carelessness in the
operation of machinery or equipment, an apparent disregard for the employee’s
own safety or that of other employees, involvement in an accident or damage to
the employer’s property, disruption of the workplace or negligent conduct that
results in an injury to another employee. Unfortunately, many of these
statutory factors may indicate other issues, such as a stroke or other physical
impairment. Well documented symptoms of impairment by trained supervisors and
managers are currently the strongest “test” for being under the influence of
cannabis, which can be strengthened by a positive test result for the same.
So, employers can never use a positive test
result for cannabis as the basis for discipline against employees?
No. Employees who must possess a CDL, certain law enforcement
and employees who operate under federal grants can still be disciplined for
cannabis use because cannabis is still illegal under federal law.
Additionally, in Illinois, even after January 1, 2020, recreational cannabis
use is still illegal for individuals under the age of 21. Employees under that
age may still be disciplined solely on the basis of a positive cannabis test
result.
Can we still include cannabis among the drugs
tested in random drug tests?
Employers should no longer test for cannabis use as part of
random drug testing except for CDL required positions, certain law enforcement
personnel and those under 21 years of age, with the caveat for lawful medical
cannabis use. Additionally, pre-employment drug screens should no longer include tests for
cannabis as it will be a “lawful product” after January 1st.
How does the legalization of recreational
cannabis affect our ability or need to regulate the use of medical cannabis?
The use of cannabis for lawful medical purposes has been
the exception from discipline for qualifying individuals while cannabis is
still an illegal drug for recreational use. After January 1st, employers will
no longer need a medical cannabis caveat in their policies except for employees
who are still prohibited from its use under federal law.
Do employers need to update their drug and
alcohol policies?
Possibly. Since policies vary, it is important to review and
when necessary, revise workplace drug and alcohol policies. Equally as
important, is the need to revise employment practices in the workplace.
Training or retraining supervisors and managers on reasonable suspicion
indicators and updating forms that document such is essential. The strength of
an employer’s disciplinary decision rests on how knowledgeable and thorough the
process of determining reasonable suspicion is. Eliminating cannabis testing in
pre-employment and random testing, except for DOT, some law enforcement and
federally controlled positions will prevent allegations of violation of the
Right to Privacy in the Workplace Act for adverse actions resulting from use of
a lawful product while off duty.
Original post authored by Margaret Kostopulos, Ancel Glink
0 comments:
Post a Comment