Marijuana and the Workplace

Starting January 1, 2020, Illinois residents can legally use marijuana recreationally, and not just for specific medical reasons. But if you’re an HR leader, managing the law’s potential complications for employees may harsh your mellow. Illinois is only the 11th state to make cannabis (the plant known as marijuana) legal. Although the law may seem straightforward, it opens up debate over issues like employers’ rights to a drug-free workplace versus employees’ rights to privacy, whether drug testing is even necessary—and if so, when—and what the consequences could be for companies, whether they decide to test or not.

How Did We Get Here?

On June 25, 2019, Illinois governor J.B. Pritzker signed into law the Cannabis Regulation and Tax Act, which made possessing and selling cannabis legal for people age 21 and older, effective January 1, 2020. Although qualified people with certain medical conditions can already legally use the drug, this is the first time in the state that the general population can use cannabis recreationally.

The law says that as of the new year, adults over 21 can legally purchase cannabis for recreational use from licensed dispensaries across the state. The law limits how much weed people can possess and prohibits them from lighting up anywhere, such as streets, parks or public buildings.

Even as Illinois joins Alaska, California, Colorado, District of Columbia, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington in legalizing marijuana, state laws vary on how much you can possess or grow. It’s worth noting that although these states have given the nod to marijuana, using the drug is still against federal law.

Realistically, however, it’s unlikely that Illinois will reverse its course. Public opinion increasingly supports legalizing recreational marijuana, prodded by the number of people who use it already. Pew Research found that 48% of American adults have smoked marijuana, and in one study, 22.2 million people said they’d used the drug in the past month.

And while older adults tend to consider marijuana a gateway drug, younger generations see it as an alternative to alcohol. For millennials, smoking pot gives them a buzz without the calories or hangover, and for Gen Z, smoking marijuana is cheaper than drinking alcohol.

As these younger generations enter the workforce, they bring their acceptance of recreational marijuana use with them.

Marijuana and the Workplace

Beyond restrictions around toking in public places, the law allows companies to ban the use of marijuana in the workplace. Companies can still have zero tolerance and drug-free workplace policies which prohibit employees from bringing or using marijuana in the workplace, on company property, or while doing company business. Before disciplining an employee, the law requires the employer to give the employee a reasonable opportunity to contest any accusations.

When the law was initially passed, it raised a lot of questions about employers’ potential liability. However, Governor Pritzker later signed an amendment providing more clarity. The revision says that the new law does not open employers up to liability for “actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.”

Despite this protection for employers, the marijuana-and-workplace combo can still get sticky. Off-duty employees may legally use marijuana, but what happens if they are called back to work unexpectedly when they might still be under the influence? If an emergency occurs after hours, and all hands on deck are needed, it makes an awkward call-out for an employee to say they’re too stoned to perform their job.

If an employer has a “good faith belief” that an employee is high on the job, the employee can be disciplined or terminated. The law suggests that signs of being under the influence include:

• Change in the employee’s speech
• Decreased dexterity
• Decreased coordination
• Change in demeanor
• Irrational or unusual behavior
• Disregard for safety
• Involvement in a workplace accident

But, if you single out an employee for testing based on these behaviors, use caution. If the person’s behavior, say, slurring of words, isn’t caused by drug use, but because of a medical condition—and protected by the Americans with Disabilities Act, you could be charged with discrimination.

Another example of stickiness: in 2017, a court in Massachusetts said an employee who was fired for testing positive for marijuana could pursue a disability discrimination claim. The employee was a registered medical marijuana patient, but the company had a zero-tolerance policy. The court said the company should have explored reasonable accommodations, noting that the tests can’t tell the difference between when marijuana is impacting performance versus lingering in the system after being used off duty.

Although “good faith belief” should protect the employer, we’ll have to see how this plays out in the future.

Final Thoughts

One thing is certain: the practices surrounding recreational marijuana and the workplace will continue to evolve. Don’t wait until an incident occurs to determine how your organization handles this issue.

Rosanna Snediker