To Discipline or Not to Discipline: What to Do With Illinois’ New Pot Law?

Employers in Illinois will face a conundrum come January 1, 2020. Illinois legislature recently passed some of the most expansive marijuana laws that the United States has seen to date. The Cannabis Regulation and Tax Act (the “Act”) legalizes marijuana, making it a “lawful product” under the Illinois Right to Privacy in the Workplace Act which prohibits discrimination against employees for using lawful products. It raises the question of when disciplining an employee for marijuana use is acceptable compared to when the discipline may cross the line into prohibited discrimination.

The Act explicitly grants employers the right to maintain a drug-free workplace. Section 10-50 states in part:

• Employers may adopt reasonable zero tolerance or drug free workplace policies (the Act allows employers to define the extent of the “workplace” while providing guidelines of what shall standardly be considered part of the workplace).
• Employers are not required to allow an employee to use marijuana at work or while on call (the Act defines “on call” as when an employee is scheduled with at least 24 hours’ notice to be on standby or otherwise responsible for performing work-related tasks).
• Employers may adopt employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call. These employment policies may not be applied in a way that discriminates against employees for their use of marijuana outside the workplace.
• Employers may discipline their employees for using marijuana at work, possessing marijuana at work, or being under the influence of marijuana at work.

But there’s a catch. Employers do not have the authority to prohibit their employees from using marijuana recreationally outside of work. The Right to Privacy in the Workplace Act prohibits employers from discriminating against employees in any way for the recreational use of marijuana outside of work. Employers’ abilities to maintain a drug-free workplace are exclusively limited to prohibiting the use or possession of marijuana in the workplace.

This presents an array of problems. While “possession” is relatively cut and dry, “use” is far more complex. Currently, there is no real-time test to determine if an individual is under the influence of marijuana. This is problematic because it can be difficult to definitively determine if someone is under the influence of marijuana at any given moment. Sometimes a person demonstrates outward signs of being under the influence of marijuana, but many systemic marijuana users do not exhibit the telltale signs.

The Act requires that employers have a “good faith belief” that an employee is under the influence of marijuana at work. “Good faith belief” involves the observation of diminished employee performance during the time that the employer believes the employee to be under the influence of marijuana. The following factors outline what employers may consider when determining if an employee is under the influence

• Speech
• Physical dexterity
• Agility
• Coordination
• Demeanor
• Irrational or unusual behavior
• Negligence or carelessness in operating equipment or machinery
• Disregard for the safety of the employee or others
• Involvement in any accident that results in serious damage to equipment or property
• Disruption of a production or manufacturing process
• Carelessness that results in any injury to the employee or others

It is unclear if a certain number of these factors will be necessary to demonstrate the “good faith belief” that is required, how some of these factors may be proved or demonstrated, or to what extent the factor must be evidenced. It is also unclear whether employers may consider other factors that are not enumerated within the Act.

The Act protects employers by explicitly stating that it shall not be construed to create or imply that it grants a cause of action to employees against employers for subjecting employees to drug testing, disciplining or terminating an employee on the employer’s good faith belief that the employee was under the influence of marijuana at the workplace, or liability for the employee’s impairment that resulted from the employee’s marijuana usage that was unknown to the employer. Though it does not create a cause of action for employees, the Act does require that employers provide employees with a “reasonable opportunity” to contest the basis of the disciplinary action taken against the employee.

The Bottom Line

1. Any disciplinary action taken against an employee for marijuana use may result in the employer becoming the court’s guinea pig.

While this Act seems to attempt to protect employer’s right to discipline and terminate their employees for marijuana usage in the workplace, it has some serious complications. The key issue here is that an employee has a cause of action under the Illinois Right to Privacy in the Workplace Act to recover actual damages, attorneys’ fees, costs, and statutory penalties if the employee can show that the employer took disciplinary action against the employee for the use of marijuana outside the workplace. Because of this, it is crucial that an employer clearly show that an employee was using or possessing marijuana at the workplace if the employer wishes to take disciplinary action against the employee. If it is unclear or difficult to prove that the employee was using marijuana at work, compared to off-duty use, not only will the disciplinary action potentially be reversed, but it may end up costing the employer.

It is unclear how courts are going to rule on this issue. They might be sympathetic to employers and apply a broad benefit of the doubt to an employer’s “good faith belief.” But the courts could strictly construe the factors in favor of the employee. Time will tell, but it would be best to avoid being the courts’ guinea pig.

2. The usefulness of drug testing is now extremely limited.

It is interesting that drug testing is not within the list of factors to consider. This is likely because there is no real-time test to determine if someone is under the influence of marijuana. A drug test is retroactive in the sense that it determines if an individual has used marijuana within a period of time. It is not exact and cannot be used to prove that a person is under the influence of marijuana at the time of the drug test. While employers are still permitted to employ the use of drug testing at their discretion, the usefulness of drug testing is limited.

Employers may soon begin to cease drug testing because of the limited purposes for which a positive drug test may be used. If employers are unable to demonstrate that the marijuana usage happened in the workplace, they cannot take any action against the employee for a positive drug test. This results in drug testing becoming a worthless expenditure for employers.

Action Steps to Take in Light of the Cannabis Regulation and Tax Act

1. Provide training to employees in observation and documentation of the indicators outlined in the Act. This is a difficult situation, and it would be ill-advised to discipline an employee without compelling evidence that the employee was under the influence at work.
2. Update employment manuals and policies to include a structured process for employees who want to appeal disciplinary actions. Keep in mind the Act requires employers to give employees an opportunity to appeal disciplinary actions founded on a “good faith belief” that the employee was under the influence of marijuana at the workplace.
3. Refrain from disciplining employees for suspected marijuana usage. Ultimately, it may be best not to discipline employees until the courts have established a pattern that illuminates how they intend to deal with marijuana in the workplace. Specifically, employers will want to see how the courts interpret the “good faith belief” standard, evaluating if the courts tend to favor employers or employees.

Posted by Attorney Ruth Binger. Binger serves both emerging and mature businesses concentrating in corporate law, intellectual property and technology law, cybersecurity, digital media law, and labor and employment law. Her commitment to the success of small to medium-sized businesses, and her understanding of multi-faceted issues inherent in operations, are what distinguish Binger’s practice.

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