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The Illinois Cannabis Regulation and Tax Act made recreational use of cannabis legal under Illinois law starting January 1, 2020. The Act prohibits employers from taking actions against employees or job applicants based on the use of products that are lawful under state law, and as of January 1, 2020, cannabis is lawful under Illinois law. While employers cannot control what their employees do away from the workplace, there are some steps that dealers can take to blunt the impact the Act will have on dealership operations. Legislation signed by the Governor on December 4, 2019 clarified actions that are permissible for employers. Below are some of the do's and don'ts for employers under the Illinois Cannabis Regulation and Tax Act.
One of the most important steps dealers can take is to adopt a reasonable and nondiscriminatory workplace drug policy. Section 10-50 of the Act provides that an employer may do any or all of the following:
- Adopt a reasonable zero tolerance or drug free workplace policy, which can include prohibitions against smoking, consumption, use, being under the influence of, or storage of cannabis in the workplace or while on call or while performing job duties, provided that the policy is applied on a nondiscriminatory manner.
- Adopt a reasonable employment policy concerning drug testing, provided that the policy is applied on a nondiscriminatory manner.
- Discipline or terminate an employee for violating a reasonable and nondiscriminatory employment policy or workplace drug policy.
A workplace drug policy for cannabis can be very similar to an employer's policy regarding alcohol use, consumption possession, and impairment. However, because cannabis can show up in drug tests well after impairment has ended, there is not a clear-cut test for cannabis impairment like blood alcohol tests for alcohol impairment.
An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that the employee manifests specific, articulable symptoms, while working, that decrease or lessen the employee's job position duties or tasks, including symptoms of the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for his or her own safety or the safety of others, or involvement in an accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in injury to the employee or others. Any discipline on the basis that the employee is under the influence of or impaired by cannabis must include a reasonable opportunity for the employee to contest the basis of that determination.
The Act permits an employer to take actions based on the employer's good faith belief that an employee used or possessed cannabis in the workplace or while performing job duties or while on call in violation of the employer's employment policy. The Act also permits an employer to take actions, including discipline or termination, based on a good faith belief that an employee was impaired as a result of the use of or being under the influence of cannabis, while at the employer's workplace, while performing the employee's job duties or while on call in violation of the employer's employment policy.
It should be noted that the Illinois Cannabis Regulation and Tax Act specifically does not interfere with any State, federal, or local restrictions on employment, including U.S Department of Transportation regulations, does not impact an employer's ability to comply with State or federal law, and shall not be construed in such a way as to cause an employer to lose a State or federal contract or funding.
It is recommended that dealers review their employment policies and workplace drug policies. A policy that prohibits the use or possession of or impairment from "illegal drugs" or a similar generic term may not apply to cannabis starting January 1, 2020. Employment policies and workplace drug policies should specifically prohibit smoking, consumption, use, being under the influence of, and storage of cannabis in the workplace, while on call, or while performing job duties.
An employer may take actions pursuant to the employer's reasonable workplace drug policy, including but not limited to subjecting an employee or job applicant to reasonable and nondiscriminatory drug and alcohol testing. Although the Act permits testing, the Act is brand new, meaning that there is no case law interpreting the Act. However, a drug testing policy that includes random drug testing and/or post-accident drug testing that is reasonable and non-discriminatory is likely to pass muster under the Act, as long as it really is reasonable and non-discriminatory. A random drug test must actually be random--meaning you cannot use a random drug test to target certain employees based on suspected cannabis use or other reason. Similarly, if you adopt a post-accident drug testing policy, the test should be conducted routinely, not just after accidents involving problem employees. A drug testing policy, even one that is reasonable and nondiscriminatory, is not a free pass for employers to ignore the Act. A positive drug test may bolster an employer's good faith belief that an employee is manifesting symptoms of impairment from cannabis, but again, with no case law interpreting the Act, it is not safe to conclude that a positive drug test, by itself, is a sufficient ground to discipline or terminate an employee.
For purposes of the Act, the term "workplace" means an 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 the performance of the employee's job duties, and the employer's vehicles (whether leased, rented, or owned). The Act provides that the term "workplace" can also be further defined by an employer's written policy, provided that the policy is consistent with the Act. If any of your employees drive or ride in dealership vehicles or customer vehicles away from the dealership premises while performing their job duties, you may want to make sure that those situations are covered by your written policy.
The term "on call" is also defined in the Act. An employee is considered to be on call if he or she is scheduled with at least 24 hours' notice be the employer or the employee's supervisor to be on standby or otherwise responsible to perform tasks related to the employee's employment, either at the employer's premises or other previously designated location to perform a work-related task.
Note: Employees who are entitled to use cannabis for medical reasons as authorized under the Compassionate Use of Medical Cannabis Program Act may be entitled to additional protections.
If you have any questions about this bulletin, please feel free to contact IADA at 217-753-0220 or ldoll@illinoisdealers.com.
LEGAL ISSUES DISCUSSED IN THIS BULLETIN ARE FOR GENERAL INFORMATION AND DEALERS SHOULD CONSULT PRIVATE LEGAL COUNSEL FOR APPLICATION IN PARTICULAR CASES. |
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