Lots of buzz about marijuana in the workplace

Finding and keeping qualified and productive employees continue to be a significant challenge for employers. Illinois employers soon face the additional challenge of navigating drug testing in the workplace.

Under federal law, marijuana remains a Schedule 1 drug under the Controlled Substances Act and has "no accepted medical use." However, on June 25, 2019, Illinois Gov. Pritzker signed a bill making Illinois the 11th state (including the District of Columbia) to legalize recreational marijuana. Medical marijuana has been legal in Illinois since 2014 and allows qualified patients access through registration with a state agency.

Beginning Jan. 1, 2020, adults over age 21 can legally purchase marijuana for recreational use from licensed dispensaries across the state. However, employers retain their right to adopt reasonable zero-tolerance or drug-free workplace policies concerning drug testing, smoking, consumption, storage, or use of marijuana in the workplace or while on call, provided the policies are applied in a nondiscriminatory manner. The law also does not prevent employers from disciplining or terminating employees for violating these workplace drug policies.

The new law amends the Illinois Right to Privacy in the Workplace Act, prohibiting an employer from refusing to hire, terminating, or taking adverse action because the employee uses alcohol and/or tobacco (lawful products) away from the workplace on nonworking time. Recreational marijuana will also be considered a "lawful product" and subject to the same protections. Thus, Illinois employers will generally be prohibited from taking any adverse action because an employee lawfully consumes cannabis outside of working hours and is not impaired during working hours or while "on call."

By definition, pre-employment activity is outside of working hours. Thus, drug testing job applicants for marijuana would be considered a violation of their lawful product use protection. However, in November, the Illinois legislature passed an amendment to the recreational marijuana law specifically stating that the law does not prevent an employer from implementing reasonable drug and alcohol testing of applicants and from withdrawing a job offer in the event of a failed pre-employment test. While the governor is expected to sign it into law, either way, employers will have a final outcome on the legality of pre-employment drug testing for marijuana by Jan. 13, 2020.

Now is a good time for Illinois employers to review their drug and alcohol policies. For a pre-employment drug test, whether employers may lawfully refuse to hire an applicant based on a failed marijuana test remains uncertain until decided by Jan. 13, 2020. In the unlikely event the Governor vetoes the bill, MRA suggests employers consider removing marijuana from their pre-employment panel.

Under the new law, employers will have to determine reasonable suspicion for non-random testing of employees. In the event of a positive test, the employer must afford the employee a "reasonable opportunity" to contest the basis of the determination, not defined by the law and leaving an area for the courts to define.

Employers will still be allowed to maintain and enforce "drug-free" or "zero-tolerance" policies concerning smoking, consumption, storage, or use of marijuana in the workplace. In addition, marijuana is still illegal under federal law, and all safety sensitive employees who are subject to federally mandated drug testing are still subject to applicable federal rules and regulations, such as U.S. Department of Transportation (DOT) regulations.

Finally, employers may continue to rely on drug tests and to discipline employees or decline to hire applicants who test positive for alcohol or other illegal drugs. Employers should ensure they have robust reasonable suspicion drug-testing programs and supervisory impairment determination training, including a clear written policy outlining the circumstances that can trigger reasonable suspicion drug testing.

•Michael Hyatt is HR Government Affairs Director and Selena Castle, HR Business Partner at MRA - The Management Association. Follow MRA on LinkedIn, Facebook: http://facebook.com/MRAmeansHR, or Twitter: @MRA_HR_Pros.