Panel: Legal pot won't affect workplace impairment policies

Although a lot of "ifs" will remain when recreational marijuana use becomes legal on Jan. 1, employers will have latitude when it comes to dealing with employees who come to work impaired.

That was the consensus of a panel of experts Wednesday at the Recreational Marijuana in the Workplace Forum, presented by the Daily Herald Business Ledger and its sponsoring partners. More than 70 suburban business owners and professionals attended the event at Belvedere Events & Banquets in Elk Grove Village to discuss how to deal with workplace issues and policies relating to legalization next year.

Though the new law decriminalizes casual use of marijuana, the panel noted employers can still maintain policies that prohibit use of marijuana or other substances to maintain job and workplace safety, and companies that deal with federal contracts can still adopt no-tolerance policies since the federal government classifies marijuana as a top-level narcotic.

Attorney Ross Molho, a partner with Clingen Callow & McLean LLC in Lisle, stressed that while employers cannot restrict marijuana use outside of work, they still have the right to maintain safe workplaces, which includes establishing policies that prohibit impairment at work.

"Employees have the right to use this substance, but they don't have the right to come to work impaired from this substance," Molho said. "In some sense, we need to think about it like tobacco or alcohol."

Molho and Dr. Timothy Lyman, medical director of immediate and occupational medicine at Lisle-based Amita Health, said it is important to have written policies in place, as well as train managers and supervisors to recognize symptoms and act properly if a worker is suspected of being impaired.

"You as an employer should have some protection as long as you are acting in good faith," Lyman said. "To me, I interpret that as you are following your policies equally."

"Use does not equal impairment," he added. "You can really only take action when you can prove impairment."

He noted that, for testing, saliva tests are best for checking on job impairment because marijuana lingers in saliva for a few hours maximum. Urine testing may be better for preemployment testing, as marijuana levels could linger for months and better indicate long-term use by a person.

All the experts agreed it is best to have two people observe and document the performance of an employee suspected of being impaired.

"The employers' role is really to manage employees' performance, and not to look for drug abuse," said Rusty Magner, managing director and benefits adviser of TrueNorth Companies in Des Plaines. "So to focus on the performance piece - on whether they are doing their job or not doing their job - is a great way to start."

The panelists noted that even though there are other states that have legalized marijuana over the years, there is very little data available that can help employers in Illinois set directions in their policies and practices.

"We really haven't learned much of anything from Colorado and Washington," Molho said. "So we don't have enough data, yet, to give best practices to employers."

Magner added that, from an insurance standpoint, states that have legalized recreational marijuana have not seen significant increases in company insurance rates or claims, however, he did note auto insurance rates have increased as a result of increased rates of DUI.

Presenting partners for the event were Amita Health, TrueNorth Companies and Clingen Callow & McLean LLC.