New State Laws to Protect Recreational Marijuana Users

It’s time for employers in Illinois and Nevada to update their employment policies to reflect the new state marijuana laws that went into effect in January 2020. Here is a breakdown of the laws, their impact on employers, and the policy revisions that may be needed as a result of the new laws.

 

Illinois Cannabis Regulation and Tax Act

Recreational drug use is now legal in Illinois under the Illinois Cannabis Regulation and Tax Act (“Cannabis Act”), which allows Illinois residents over age 21 to possess up to 30 grams of marijuana flower and 5 grams of marijuana concentrate for personal use.

 

The 610-page Cannabis Act provides extensive protections for employers, including these:

 

• Employers may prohibit marijuana possession or use or being “under the influence of” cannabis in the workplace while performing the employee’s job duties or while on call (meaning the employee is scheduled with at least 24 hours’ notice to be on standby).

 

• Employers may have “reasonable zero-tolerance or drug-free workplace policies” concerning drug testing, smoking, consumption, storage, or use of marijuana in the workplace while performing job duties or while on call so long as the policy is applied in a nondiscriminatory manner. Zero tolerance policies against cannabis might be reasonable where safety is at risk.

 

• Employers are not limited or prevented from disciplining or terminating an employee for violating the employer’s workplace drug policy. The law states that an employer may consider an employee to be impaired or under the influence of cannabis “if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.” The employee must be given the opportunity to contest this determination, however.

 

• Employers are allowed to have “reasonable” drug testing policies under the law.

 

• Employers may continue any testing program that federal, state, or local restrictions require or any existing policies that would otherwise jeopardize federal contracts or grants.

 

Considerations for Employers

Employers should consult with legal counsel and review their existing policies to make sure they conform with the Cannabis Act. Employers should consider the following:

 

• Whether the legalization of marijuana will affect your workplace drug policies and employment policies regarding disciplinary actions for violating drug policies. Policies can (1) prohibit employees from coming to work under the influence of cannabis, (2) prohibit employees from using cannabis during work hours, and (3) require employees to submit to a drug test if they exhibit behavior consistent with being under the influence of cannabis.

 

• Whether to establish procedures for employees to contest a cannabis-related disciplinary decision. Under the Cannabis Act, employees must be given a reasonable opportunity to contest the basis of the disciplinary decision.

 

• Whether policies should be amended for an employee’s off-duty use of medical marijuana that may be a reasonable accommodation.

 

• Whether to train personnel on the signs and symptoms of marijuana-related impairment. Employers will need to show a good faith basis for cannabis-related disciplinary actions to be lawful.

 

• Whether to drug testing and methodologies. Certain testing methodologies could detect an employee”™s legal use of cannabis outside of working hours.

 

Nevada Law on Marijuana Screening

 

Under Nevada law, employers are prohibited from refusing to hire an applicant who tests positive for marijuana during pre-employment drug screenings. The law does not apply to certain jobs in the public safety and transportation fields, such as emergency medical technicians or firefighters, federally regulated positions, or where the employer determines it would adversely affect the safety of others.  Additionally, if an employee fails a drug screening that is required during the first 30 days of employment, the employee must be allowed to pay for a second test to rebut the initial test, and employers must consider the second results. 

 

The purpose of the law is to ensure that recreational marijuana users are not penalized and denied employment as a result of initial drug screening tests that detect the presence of marijuana-based on past usage.

 

The law does not apply if it is inconsistent with an employment contract or collective bargaining agreement, if it is inconsistent with federal law, or if the position is funded by federal grants.

 

Considerations for Employers

 

The law does not interfere with an employer’s right to establish their own workplace drug policies, including a drug-free workplace policy.

 

Employers should consult with legal counsel and review their workplace policies, including drug use policies and pre- and post-employment drug screening policies. They should ensure that there is no discrimination of registered medical marijuana users in hiring and interviewing policies and practices, and train management accordingly.

 

Employers should audit their jobs to identify positions where continued pre-employment screening may fall within an exception to the prohibition, such as a safety or transportation component.

 

Stay tuned to the Poster Compliance Center blog for more updates on new state labor laws.