Navigating the Haze of Marijuana in the Workplace
By Scott Cruz
Marijuana has long been known for its calming effect on its users. Yet, recently, the complexities of how employers should handle marijuana in the workplace, for example, can employers still enforce their existing zero tolerance drug free workplace policy, can employers still conduct pre-employment drug testing, among other questions, is having quite the opposite effect on Human Resources professionals and putting them in quite a haze. This article answers three questions every Illinois employer should know regarding the legalization of recreational marijuana under the Illinois Cannabis Regulation and Tax Act (the “Act”).
Can Employers Still Maintain Zero Tolerance/Drug Free Workplace Policy?
Yes – and employers should. The Act specifically instructs that Illinois employers may adopt zero tolerance or drug free work policies, or employment policies concerning drug testing, smoking, or use of marijuana in the workplace. In fact, the Act specifically recognizes an employer’s right to do so, saying “Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for:
1. 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 non-discriminatory random drug testing, and discipline, termination of employment or withdrawal of a job offer due to a failure of a drug test.
Thus, so long as an employer maintains a written zero tolerance/drug free workplace policy, it can continue to conduct pre-employment, post offer drug tests for marijuana on applicants, and withdraw an offer due to a failed drug test; an employer also can continue to conduct random drug tests on its employees, and discipline and terminate them if a test comes back positive for marijuana; and an employer can conduct post-accident, or other forms of current employee testing (e.g. based on suspicious behavior), and discipline and terminate based solely on positive drug test for marijuana.
Can Employers Still Discipline Employees for Violating Their Zero Tolerance Workplace Drug Testing Policies?
Yes – and employers should. The Act provides that employers have the right to discipline and/or terminate employees for violating their drug free workplace policies. Such action comes with a caveat, however. The Act states that if an employer disciplines an employee on the basis that the employee is under the influence or impaired by marijuana, the employer must provide the employee with an opportunity to contest the basis for that determination. Notably, the Act does not provide guidance on permissible means to contest, or the length of time an employer is required to provide an employee who wishes to contest. Unlike alcohol, there is no permissible threshold for impairment yet, nor does the Act provide a threshold for how much marijuana consumption constitutes legal impairment. Thus, such decisions ultimately will be left up to the discretion of the employer and the employer’s written drug policy. Prior to making such decisions, employers are advised to consult with their employment attorney.
Can an Employer Discipline an Employee for Off Duty Marijuana Use?
Depends. As indicated above, if an employer subjects an employee to a drug test, and the test comes back positive for marijuana, pursuant to the employer’s zero tolerance drug free workplace policy, an employer can lawfully discipline and/or terminate an employee based on that positive drug test, even if the consumption occurred off-premises. However, in the absence of a positive drug test for marijuana, and in the absence of an employer’s good faith belief that the employee is impaired as a result of the use of marijuana, or under the influence of marijuana, while in the workplace, while performing the employee’s job, or while on-call, an employer could subject itself to liability under the Act for disciplining and/or terminating an employee simply because the individual used marijuana outside of the workplace and during non-call hours.
In summary, these are new and unchartered times for employers. But, employers seeking to maintain a zero tolerance and drug free workplace may still do so. This intent must be set forth in a clear and concise drug policy. Employers should also communicate their zero tolerance policy with employees and job applicants related to drug screening practices and consequences of use on the job or off duty. And, employers should train managers on how to deal with potential use on the job or “for cause testing” on the job, along with the ability to identify signs of using at work. Finally, it is always advisable and highly recommended that employers consult with their employment counsel regarding any issue relating to marijuana in the workplace.
Legal Disclaimer: This document is not intended to give legal advice. It is comprised of general information. Employers facing specific issues should seek the assistance of an attorney.
Future Founders on Technology Rising to the Top
Scott Issen is President & CEO of Future Founders, a non-profit that believes every youth can become an entrepreneur. Scott has over 18 years of experience in management, leadership and fundraising. As one of the organization's founders, Scott created an unparalleled suite of entrepreneurship programs for students in elementary school through college and beyond. During his tenure, Future Founders has served over 35,000 students and will serve another 2,000 students in 2019-2020. Their national millennial founders generated $17.7M in revenue, secured $12.4M in capital and created 317 jobs in the last three years alone.
Q: Since joining ChiBizHub, how has the hub served as a platform for you to reach more entrepreneurs?
A: It’s difficult for entrepreneurs to find good resources, especially when they’re busy running their businesses. Many don’t even know what’s available to them or where to look. As one of the city’s most valuable collections of on-demand resources for local businesses, ChiBizHub has been tremendously helpful in connecting Future Founders with young entrepreneurs who could benefit from our work the most. We are always looking for new entrepreneurs, mentors, and advocates to support our mission, and encourage those who believe they can help to reach out to us!
Q: Where do you see the future of technology companies in the next 10 years?A: Modern technology has eliminated so many of the barriers that previously kept people from exploring entrepreneurship. But lower barriers to entry bring increased competition, meaning technology companies need to find new ways to innovate regularly in order to meet evolving market demands. Here at Future Founders, we believe that the best way to drive innovation is to fill your teams with individuals who represent a diverse range of experiences. That is why we are so focused on making the entrepreneurial community more inclusive. Diversity drives innovation and creativity, which ultimately make technology companies better poised to succeed in this ultra competitive landscape.
Q: Congratulations on receiving the 2019 ChicagoNEXT Award at the Chicago Consular Corps Gala. Can you speak to why its important to recognize tech & innovation companies at a global event, like the Gala?
A: Thank you! We stand with ChicagoNEXT to drive growth and opportunity in Chicago’s tech community and believe that inclusive entrepreneurship begins with our youth. This award highlights the vital role tech and innovation organizations play in building strong economies, and the importance of fostering inclusion to make them even stronger. By shining a light on the thriving tech scene here in Chicago, these awards drive more momentum for our community, ultimately unlocking additional resources and opportunities for the entire ecosystem, as well as empowering the next generation of young founders and tech leaders across the city.
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