Marijuana laws have been changing rapidly over the past few years in the United States. Illinois Governor J. B. Pritzker recently signed the Cannabis Regulation and Tax Act, making Illinois the latest state to approve recreational marijuana use. Beginning on January 1, 2020, anyone over the age of 21 is allowed to possess, use, purchase, or transport marijuana for recreational purposes. Illinois business owners need to prepare now for the legalization of marijuana.
Because marijuana will be considered a “lawful product” under the Illinois Right to Privacy Act, employers may not discriminate against any employee or applicant who uses marijuana while off duty and off of the employer’s property. This means there are some portions of the Act that may require an employer to revisit their drug testing program for both current employees and applicants.
Legalization of Marijuana
Employers that use drug testing as a means to prove an employee has been using drugs on the job have a new challenge. The Cannabis Act does permit employers to maintain and enforce a zero-tolerance drug policy. However, current drug tests pick up the use of cannabis for several days or weeks after use. Therefore, a drug test alone cannot prove that an employee was under the influence while on duty.
Employers will need to rely on behavioral observations in addition to any drug test. We recommend that employers develop policies specifically for cannabis use to go into effect with the new law. Also, training managers to identify symptoms of cannabis use and know how to document them properly. This way, they can provide the evidentiary support of “good faith” required by the Act if needed.
Furthermore, most employers cannot refuse to hire a candidate because of the recreational use of marijuana off duty. This may vary depending on your industry, or if you have federal contracts. Take a look at any pre-employment drug tests you regularly use. This will ensure you are not learning information that may cause you to make hiring decisions based on the results.
If your business needs assistance preparing for the upcoming changes in the law preparing for the legalization of marijuana, call 630.928.0510 or fill out the form and one of our Business Development Managers will contact you.
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