The haze over Illinois’ legalization of marijuana use continues.
Under such law will employers still be able to maintain a zero tolerance of employees having consumed cannabis.
Yes.
And no.
Employers may adopt “reasonable zero tolerance or drug free workplace” policies concerning drug testing, smoking, consumption, storage or use of cannabis in the workplace or on call (an employee that is schedule with at least 24 hours’ notice to be on standby for performing a task).
An employer may prohibit the employee from being on the job or on call while under the influence of cannabis. The employer may consider an employee under the influence if there is a good faith belief by employer that the employee has specific “articulable” symptoms that “decrease or lessen” the employee’s performance of the job including the attributes of speech, dexterity, agility, coordination and demeanor, among others.
Employers thus would be able to discipline or fire employees if an employee is under the influence of cannabis at work. Note this might be a departure from pre-legalization of cannabis where many employers had a policy for disciplining or firing an employee where the employee merely tested positive for any cannabis. The chemical THC in cannabis that creates the exultant “high” can remain in one’s blood or urine for many days or weeks after consumption.
Now, the question is whether employees can only be disciplined or fired if under the influence at work, as opposed to simply having it in their blood or urine but not be under the influence.
Remember, the opening language of this new employment law says that nothing under the act shall prohibit an employer from adopting “reasonable” zero tolerance rules.
That suggests that unreasonable absolute zero tolerance is not allowed. Will it be reasonable to maintain an absolute zero tolerance for any cannabis if its use is now legal under certain restrictions (21 or older)? If you’re under 21 and test positive, can you still get fired for having in you any cannabis even if not under its influence?
Remember also, cannabis is still completely illegal under Federal law. Can you still prohibit any cannabis in their system if it’s illegal under federal law? Is that reasonable?
An employee does not have a right to sue the employer for violating this new employment law (for example, if the employer fired the employee for having cannabis in their system when the employer did not have a good faith belief the employee was under the influence of cannabis while on the job).
But employers beware — nothing under this new statute shields employers who violate the Illinois Right to Privacy in the Workplace Act. That act prohibits employers from discriminating against employees for using “lawful products.”
“Lawful products” under the Privacy Act are defined as ones that are legal under Illinois law. Thus, an employer can’t arguably claim marijuana’s illegality under the federal law so as to avoid liability under the privacy act.
While lighting up weed in the workplace might still be prohibited, the new Cannabis Regulation and Tax Act will surely result in lighting up courtrooms and appellate courts in a haze of litigation.
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