Friday, October 25, 2019

Cannabis in the Workplace


The Cannabis Regulation and Tax Act was passed by the Illinois General Assembly on May 31, 2019.  It was signed into law by Governor JB Pritzker on June 25, 2019.  The new law takes effect on January 1, 2020 and makes it legal for adults age 21 and older to possess and use cannabis in various forms, and it allows for dispensaries and craft growers to operate in Illinois.

Section 10-50 of the Cannabis Regulation and Tax Act (410 ILCS 705) contains the majority of the rules for the workplace.  The entire Act can be found at:  
http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=3992&ChapterID=35

The Right to Privacy in the Workplace Act (820 ILCS 55) was also amended by the Cannabis Act.  Section 5 contains information related to the workplace. That Act can be found at: http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2398&ChapterID=68

Employers in Illinois should be concerned about this new law and how it will impact employees and operations.  Employers still have time to prepare. A good place to start would be to meet with an HR legal advisor and review the following suggestions.

Update Your Policies
·       The Cannabis Act allows employers to adopt and enforce reasonable zero tolerance or drug free workplace policies if they are applied in a non-discriminatory manner. 

·       The Cannabis Act also allows employers to prohibit employees from using, storing, or possessing cannabis or being impaired by cannabis, while in the workplace, performing their job duties, or while on call.

·       And the Cannabis Act allows an employer to discipline or terminate an employee for violating the workplace drug policy.

Key words from above include “reasonable” and “non-discriminatory.”

Many employers already have an alcohol policy that includes language similar to the of the above.  A new cannabis policy should not be too different from the employer’s alcohol policy, particularly as it relates to “lawful products” as defined in the updated Right to Privacy Workplace Act.  (See below, under Drug Testing Policies.)

Even if an employer already has a zero-tolerance or drug-free workplace policy, they should update the policy to specifically include marijuana and cannabis products.  

·       The Cannabis Act defines “workplace" as the employer's premises, including any building, real property, and parking area under the control of the employer or area used by an employee while in performance of the employee's job duties, and vehicles, whether leased, rented, or owned. "Workplace" may be further defined by the employer's written employment policy, provided that the policy is consistent with section 10-50 of the Cannabis Act.

·       The Cannabis Act defines “on call" as when an employee is scheduled with at least 24 hours' notice by their employer to be on standby or otherwise responsible for performing tasks related to their employment either at the employer's premises or other previously designated location by the employer or supervisor to perform a work-related task.

Employers should consider defining “workplace” and “on call” in their updated policies. They should also consider including out of office events, overnight training trips, etc. as part of an employee “performing their job duties.”  

·       The Cannabis Act states an employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee's performance of the duties or tasks of the employee's job position. 

·       The Cannabis Act lists those symptoms as 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 any injury to the employee or others. 

Impairment is not defined solely by the results of a drug test.  In fact, without the documented specific symptoms, there is no impairment. The employer must have a “good faith belief” that an employee is impaired because of specific symptoms.  Employers should consider including the above language from the Cannabis Act in a new policy.  

Employers may wish to go further and include in their drug testing policy the impairment language from the Illinois Vehicle Code (625 ILCS 5/11-501.2). That section says there is a “presumption of impairment” when there is at least 5 nanograms or more of delta-9-THC per milliliter of whole blood or 10 nanograms or more of delta-9-THC per milliliter of other bodily substance.  If THC is present but levels are less than those noted above, “such facts may be considered with other competent evidence in determining whether the person was under the influence of cannabis. This Illinois Vehicle Code “presumption of impairment standard” might reinforce the employer’s “good faith belief” of documented symptoms.  

·       The Cannabis Act states that if an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

This will require employers to write a specific policy to provide the employee with a real opportunity to contest the basis of the determination before the discipline or termination takes effect.  

·       Nothing in Cannabis Act shall be construed to interfere with any federal, State, or local restrictions on employment including, but not limited to, the United States Department of Transportation regulation 49 CFR 40.151(e) or impact an employer's ability to comply with federal or State law or cause it to lose a federal or State contract or funding.

The Cannabis Act acknowledges that marijuana is still illegal under federal law.  Therefore, employers who have policies that require they follow the federal law because they receive federal funding or are regulated by federal agencies, will be able to continue their drug testing policies.  For example, this would apply to truck drivers, pilots, train engineers, and other “safety sensitive” positions.  

Review your Drug Testing Policies
·       The amended Right to Privacy in the Workplace Act states that except as otherwise specifically provided by law, including Section 10-50 of the Cannabis Regulation and Tax Act, and except as provided in subsections (b) and (c) of this Section, it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking and non-call hours. 

As used in this Section, "lawful products" means products that are legal under state law. In other words, you cannot discriminate against an employee or an applicant because they use lawful products (alcohol, and after January 1, 2020, cannabis) on their own personal time.  Therefore, employers should review their drug testing policies, particularly their pre-employment drug testing of applicants.  Under this Act, it would be illegal to not hire an applicant based solely on the fact that the applicant failed a pre-employment cannabis drug test.

Employers should also review their post-accident/incident and random drug testing policies for compliance with these new laws.

This section of the Right to Privacy in the Workplace Act does not apply to any employer that is a non-profit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public.

It is not a violation of this section of the Right to Privacy in the Workplace Act for an employer to offer, impose or have in effect a health, disability or life insurance policy that makes distinctions between employees for the type of coverage or the price of coverage based upon the employees' use of lawful products provided that: (1) differential premium rates charged employees reflect a differential cost to the employer; and, (2) employers provide employees with a statement delineating the differential rates used by insurance carriers.

Educate Your Employees
·       Discuss your policies regarding marijuana/cannabis use and impairment at your employee meetings and employee orientations.

o   Review any new cannabis policies and how they parallel your existing alcohol policies.

o   Review your drug and alcohol testing policies.

o   Distribute new policies or updates to your employee handbooks. Be sure to have employees sign an acknowledgement of receipt.

Educate Your Supervisors and Managers
·       Review your policy and procedure changes with your managers and supervisors.

·       Train your managers and supervisors on the signs of use and impairment (alcohol, cannabis, and illegal drugs).

·       Train managers and supervisors on the confidentiality of employee and applicant drug testing records and information related to registered medical cannabis users.

Employers should always seek professional guidance when creating or modifying personnel policies.

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