Legalized marijuana in Illinois has created another set of hurdles for employers, from being on the lookout for workplace impairment to pre-employment hiring practices.
Recreational use of marijuana in Illinois became legal Jan. 1 for adults 21 or older. The state in December 2019 clarified the law, which gave employers a better sense of how to address the specifics of dealing with marijuana use among employees and potential hires. (Medical marijuana has been legal in Illinois since 2015.)
Of course, it’s always worth mentioning that marijuana remains illegal under federal law. But the expansion of legal weed across the country continues to be a sticking point for employers.
Legalized Marijuana in Illinois: What Employers Need to Know
Here, we’ll examine five things employers need to know about legalized pot in Illinois.
- Companies can’t take adverse action against employees for use during non-work hours
Firstly, Illinois law says employers cannot discriminate against an employee for marijuana use outside the workplace. The state added weed to protected substances such as alcohol and nicotine.
However, the Cannabis Regulation and Tax Act also gives employers plenty of leeway when it comes to drug-free workplace policies. Which brings us to our next point.
- Employers can take action based on marijuana in the workplace
Despite its legalization, employers are free to ban the possession of marijuana, and its use, in the workplace. Companies may also bar workers from using pot while on-call.
The tricky aspect for Illinois employers is identifying impairment in the workplace. However, the law provides some guidance when it comes to identifying symptoms of marijuana usage. Generally, the legislation outlines signs impairment as:
- Changes in speech and demeanor
- Impaired dexterity, agility and coordination
- Irrational or unusual behavior
- Negligence or carelessness when operating equipment or machinery
- “Impairment” is still a gray area
Despite those tips for employers within the legislation, impairment remains difficult to prove.
Unlike a breathalyzer, there is no test that shows how high a person is (only whether they have used pot), creating difficulty for employers to prove impairment. Also, the rise of edible forms of marijuana means employers may not be able to simply tell by smell whether a worker is on weed.
Meanwhile, the law also says: “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.”
- Employers can reject job applicants, and discipline workers, based on a positive test
In Illinois, companies can still conduct “reasonable drug and alcohol testing” of both current and prospective employees.
Though state law allows companies to reject applicants and discipline employees based on a positive test, companies may still face legal challenges.
“The tension is if an employer decides to withdraw an offer of employment or terminate someone based solely on a positive marijuana test, without any additional signs of impairment, I think that leaves room for a question about whether they’re taking action based on someone’s lawful use of marijuana while they’re (off) duty,” Julie Stahr, a partner in labor and employment law at Schiff Hardin in Chicago, told an Illinois newspaper.
- Company policies should be nondiscriminatory
Regardless of how a company implements its policy regarding drug use, maintaining compliance means those policies must be applied evenly.
“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,” Benjamin Wesselschmidt, an employment attorney, told St. Louis Public Radio, adding that such action could result in a lawsuit.
Wessleschmidt also noted the racial undertone of marijuana’s history and the war on drugs in general, warning employers of bias playing a role in drug testing of employees and prospects.
One final note: Illinois does not have a notice requirement regarding marijuana use and positive drug tests.
Marijuana Legalization and Hiring in the U.S.
The expansion of legalized marijuana in the U.S., as well as low unemployment rates, has led to a renewed discussion of how businesses address usage, especially as it relates to hiring.
In Nevada, for example, the state passed a law making it illegal to refuse to hire someone based on the presence of marijuana in pre-employment drug screenings. (There are exceptions for emergency personnel, drivers, etc.) That law went into effect Jan. 1.
Oftentimes, it’s up to the company to examine its operations before settling on a drug-testing policy.
“In states where it’s legal, they’ll tell you, ‘We can’t get good candidates if we test for marijuana,’” Melissa Osipoff, an attorney with the law firm Fisher Phillips, told the New York Times.
Back in Chicago, some companies simply forgo drug testing. Relativity, a Chicago-based legal tech firm, doesn’t do screenings. Matt Garvey, the company’s director of talent acquisition, told the Chicago Tribune the policy exists for two reasons.
“First, the jobs within our organization do not require a pre-employment drug test, and second we trust that our team members will make the appropriate decisions in order to be a productive member of our teams while adhering to local laws,” he said.
A 2019 GovDocs survey of HR professionals also found that questions about marijuana were among the most common they receive from employees.
Expansion of Marijuana Legalization
As of this writing, 33 states have legalized medical marijuana. Another 11 have legalized recreational use.
The tide doesn’t seem to be slowing. Public support for legalized weed is growing, according to the Pew Research Center, and that sentiment is reflected in ballot measures and newly proposed legislation.
States where marijuana legalization could come up in 2020 include:
- New Jersey
- New Mexico
- New York
- South Dakota
Ultimately, companies must be aware of new laws, and guidance from state departments, regarding marijuana in the workplace, appropriate hiring practices and employee’s rights.