LAW REVIEW | ASSOCIATION PRACTICES THROUGH A LEGAL LENS |

Drug-free Workplaces: Up in Smoke?

BY SUSAN F. CARLSON

Q: WITH RECREATIONAL NOW LEGAL IN ILLINOIS, CAN WE CONTINUE TO ENFORCE OUR DRUG- FREE WORKPLACE POLICY?

A: Yes. Although Illinois residents aged 21 and over • incorporate disciplinary measures up to and can (as of Jan. 1, 2020) legally consume, purchase and including termination. transport cannabis and related paraphernalia, and possess The Act falls somewhat short, however, in that it defined limits of cannabis and products, fails to define “reasonable” in the context of a drug-free the Illinois Cannabis Regulation and Tax Act (the workplace policy. As an additional complicating factor, “Act”) has explicitly affirmed that employers, including the legalization of recreational cannabis means that, in associations, may continue to adopt and maintain zero the absence of a “reasonable” workplace drug policy, the tolerance and drug-free workplace policies. Illinois Right to Privacy in the Workplace Act (“RPWA”) Specifically, the Act permits employers to adopt prohibits employers from discharging, refusing to hire, “reasonable” drug-free workplace policies that: or disciplining an employee through disadvantageous • subject employees and applicants to drug testing; compensation, benefits, terms, etc. for using lawful • forbid employees from possessing, being under products during nonworking and non-call hours. the influence of, or using cannabis while in the The Act does provide some guidance in requiring

workplace, performing job duties, or on call; and employers to have “a good faith belief” that an Images via Getty Collection Image: BraunS/E+

8 MAY • JUN 2020 employee is in possession, or under to seek instead of recommended the active influence, of cannabis or prescribed opioid treatment. Like the Act, the in the workplace prior to imposing Medical Cannabis Program expressly acknowledges any discipline or termination. To an employer’s right to adopt a drug-free workplace. At make such a determination, the same time, employers should be aware that those employers may look for symptoms employees covered by the Medical Cannabis Program that demonstrate impairment necessarily carry a recognized diagnosis, which or decreased performance of potentially provides them additional job protection the employee’s speech, physical arguments. In those situations, and for every situation, dexterity, agility, coordination, employers should ensure that their policies and testing or demeanor, and they may programs do not single out any person or group. assess whether they believe the Going forward, associations with employees in employee exhibits irrational or Illinois should review their employee handbooks and unusual behavior. In addition, existing policies to: employers may look for signs of • evaluate whether to adopt a zero-tolerance or negligent or careless operation of drug-free workplace policy; and machinery, disregard for safety, • assess if current policies warrant updates to be involvement in an accident that more “reasonable.” causes injury or damage, disrup- Given the legalization of , tion to production or carelessness employers should consider taking a common-sense that results in injury to others. approach to adopting or enforcing such policies. For If an employer concludes an example, it would be prudent to evaluate which jobs employee is under the influence and job tasks are appropriate for routine and takes disciplinary action, the or random cannabis drug testing (e.g., use employer must provide the subject of heavy machinery, operating a vehicle), employee with an opportunity to rather than attempting to test for canna- contest its determination. bis for all employees. In short, focusing Although a connection between on workplace safety will help Illinois monitoring for cannabis and mon- employers tailor appropriate and reason- itoring for alcohol can be made, able drug-free policies to their places of cannabis testing is more difficult employment and give themselves the best as it cannot establish recent use opportunity to successfully implement as reliably as alcohol testing can. those policies. SUSAN FEINGOLD Accordingly, a positive cannabis Finally, associations should be aware CARLSON, JD test result can be misleading. that federal laws remain more restrictive Given the dependability issues, employers should than the Act, and state laws vary. CHICAGO LAW recognize that cannabis testing within the confines of Thus, organizations with employees in PARTNERS, LLC an established policy may not provide straightforward multiple states must take care to review answers or a clear basis for disciplining an employee. their employee handbooks and other In addition, the Act specifically reminds employers applicable employment-related policies to apply drug-free policies in a nondiscriminatory to confirm compliance with the relevant fashion and expressly states that it does not “enhance laws in each jurisdiction. or diminish” protections afforded by the Compassion- ate Use of Medical Cannabis Program Act (“Medical THIS LAW REVIEW WAS WRITTEN Cannabis Program”) or the Opioid Alternative Pilot BY SUSAN FEINGOLD CARLSON AND Program (“Opioid Program”). The Medical Cannabis EDITED BY JED MANDEL, BOTH OF Program permits cannabis possession and use by WHOM ARE FOUNDING MEMBERS OF JED R. MANDEL, JD individuals diagnosed with certain debilitating medical CHICAGO LAW PARTNERS, LLC. CLP conditions. The Opioid Program grants patients SERVES AS THE ASSOCIATION FORUM’S CHICAGO LAW diagnosed with certain medical conditions the right GENERAL COUNSEL. PARTNERS, LLC

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