Illinois is the 11th state to pass legislation allowing the sale and consumption of recreational cannabis. Unlike other states, Illinois amended other laws that protect its citizens from adverse employment action for engaging in activities legal in the state, including possession and consumption of medical and recreational cannabis.
The Right to Privacy in the Workplace Act was amended to include those protections. Currently, no similar employment protections are offered to residents of Colorado and California, and employers are allowed to implement zero-tolerance policies concerning the use of recreational cannabis.
The term “zero tolerance” appears to leave little room for interpretation, but it is a term that creates complications for Illinois employers. Neither medical nor recreational laws in Illinois permit the possession, use, or intoxication at or during work. However, the most common forms of testing for cannabis are not capable of determining intoxication or impairment! Current detection methods are only capable of determining if a person used cannabis, depending on the testing method, for up to six months. Zero-tolerance policies were common when the use of cannabis was illegal. Employers could deny or terminate employment if an applicant or employee tested positive for the use of an illegal substance. The Illinois Right to Privacy in the Workplace act prevents employers from taking adverse employment action unless the employer can establish the employee was impaired or intoxicated at work.
Illinois employers are at risk of violating the law if they use currently available testing protocols for cannabis. Many Illinois employers plan to eliminate cannabis from the panel of drugs tested for during pre-hire, random, and reasonable suspicion testing because of the protections the state provides its citizens. Illinois employers that continue to employ a zero-tolerance policy using existing test-technology risk the chance of employment practice lawsuits for violating the state’s protections provided to users of substances deemed legal by the state.
What to do now
So what should Illinois employers do to prevent the use or intoxication of cannabis at work? Noah A. Frank of SmithAmundsen LLC, a Chicago labor attorney, suggests a couple of things:
- Develop and communicate a drug and alcohol policy that addresses the unique provisions of the Illinois law
- Eliminate cannabis from pre-placement and random drug testing panels
- Provide reasonable suspicion training to supervisors and managers to proactively identify employees who may be working under the influence of various substances
- Evaluate the need for disciplinary action on the circumstances surrounding an accident, injury, or near miss rather than depending entirely on the results of a drug test
Let’s look at an example. An employee drives a forklift into a storage rack, causing the collapse of the rack and its contents. Many employer drug policies would use the event to trigger a reasonable suspicion to require a drug and alcohol test, but a positive test is currently NOT an indication of intoxication, and terminating the employee may violate his or her rights because impairment at the time of the test cannot be established. Why not just discipline the employee for the unsafe behavior itself, and eliminate the potential liabilities associated with current testing methods for cannabis?
Until a reliable method of determining intoxication by cannabis is available, Illinois employers must make significant changes to their drug testing protocols. Other states may adopt Illinois’ protections for citizens who use substances deemed legal by their states, so this will likely be an issue for employers in other states as cannabis and employment laws evolve.
New testing technology
Unlike other issues where the law tends to lag behind technology development, this is an example where the laws changed, but technology has failed to keep pace. The missing link is a simple, reliable test that can approximate impairment precisely. Scientists, employers, and regulators are scrambling to develop a solution as the issue of cannabis intoxication extends well beyond employment into areas including driving under the influence of cannabis. Medical and recreational-legal cannabis states are struggling to enforce cannabis DUI laws because of the lack of testing methods to enforce the law.
One of the more promising solutions is the development of a breathalyzer device capable of detecting recent consumption of cannabis. The “high” from inhaled cannabis is estimated to last approximately 3 hours, and the breathalyzer technology is capable of quantifying the concentration of exhaled THC (the intoxicating compound in cannabis) up to 3 hours following use. Hound Labs and Cannabix Technologies are two companies leading the development of this technology. They are developing products for both law enforcement and employer markets, but this technology is still under development and may not be available for some time.
Many employers have eliminated cannabis from the list of substances in their drug testing panels until technology and science develop a more reliable test. Some employers are using an electronic form of impairment testing to quickly screen all employees in safety-sensitive jobs before reporting to work. It can detect impairment from a variety of causes including drugs, alcohol, fatigue, illness, and other causes. Employees who do not pass the test may be assigned to a less dangerous task. Adverse employment action cannot be taken for failing electronic testing as impairment may be the result of causes other than drugs and alcohol. Predictive Safety developed the electronic technology used to detect impairment.
As more states legalize cannabis, there will be pressure on the federal government to de-list cannabis from federally regulated substances. The conflicts between state and federal cannabis laws only serve to create more confusion. Simple and reliable testing will eventually be available to protect the public from cannabis-impaired drivers and employers from cannabis-impaired employees. Until that happens, exercise caution as the confusion creates an environment ripe for employment practice liability claims.
Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.