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Employers Puzzle Over Future Rules On Workplace Cannabis Impairment

Attorney Grant Campbell explains the new Cannabis Act to employers at the Recreational Cannabis and the Workplace Conference

Businesses will have to change, well, the way they do business after recreational cannabis use becomes legal in January. Till now, simple drug-screening tests have helped employers maintain a drug-free workplace. After January it won't be that simple at all.

The McLean County Chamber of Commerce partnered with lawyers from the Brady, Connolly, & Masuda law firm to host a conference Wednesday for employers to address new policies regarding legalized recreational cannabis.

According to the Controlled Substance Act and the Drug-Free Workplace Act revision, employers shall not reject an applicant or terminate an employee if they test positive for cannabis during drug tests. 

Attorney Grant Campbell said employers have to exercise good faith in enforcing zero-tolerance policies.

“The Cannabis Act shifted from a positive drug screen to the employer’s good faith belief that the employee was impaired or under the influence of cannabis at the workplace,” Campbell said. “Now, it is turning to the employer to document and observe their employees to determine if they are under the influence or not.”

Signs employers may use to determine impairment include slurred speech, negligence, disruption of production or manufacturing process, agility, physical dexterity, or carelessness that results in any injury to the employee or others. Documentation of any impairment can be used to determine any violations of the policy. Employees have the right to contest impairment documentation. Campbell said it will be up to the courts to define each term and what they will mean when employers are revamping their policies. 

Employers at the conference said they were also concerned about testing employees to detect any use of cannabis immediately before arriving at work.

“Blood testing is still the best option, but not very feasible for our employers,” Campbell said. “Urine and hair drug testing does not provide us when the individual used marijuana. So, as marijuana is legal, they can use it on the weekend or when they’re not at work. But the testing doesn’t identify if they used it legally when they were off of work or when they were at work. That’s our main issue right now.”

While determining violations and when to terminate a worker remains unclear, Campbell said employers are encouraged to include new cannabis policies to ensure consequences for being under the influence at work while following the federal and state laws.

Gov. J.B. Pritzker signed legislation in June to legalize recreational marijuana, making Illinois the 11th state in the nation to do so. The legislation will become effective Jan. 1.

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Darnysha Mitchell is an Illinois State University student and reporting and social media intern at WGLT.