Pot on job still fireable offense
HR will have ‘hands full’ under state law for recreational use
Now that recreational pot is legal in Illinois, marijuana enthusiasts may feel like it’s finally time to emerge from hiding.
But people with jobs — or looking for them — might want to stay in the shadows for now as companies figure out how to handle employees who partake.
In Illinois, employers are allowed to fire workers who bring cannabis to the office, show up impaired or fail random drug tests, according to the state’s new law legalizing recreational marijuana use, which was amended in December to clarify employers’ rights. Companies also are able to reject job applicants who don’t pass drug screens.
But employers that take action against their workers still could face a haze of legal questions, such as whether their policies are reasonable or whether employees were actually impaired, which can be difficult to prove given there’s no way to test for impairment.
“It really has left almost every Illinois employer in somewhat of a quandary about what they can and should be doing in terms of drug testing, and what they can and should be doing with a positive marijuana result,” said Julie Stahr, a partner in labor and employment law at Schiff Hardin in Chicago.
The law states that employers may subject employees and job applicants to “reasonable drug and alcohol testing,” which can include pre-employment testing and random testing. And an employer may discipline employees, fire them or withdraw a job offer if an applicant fails a drug test, in line with a “reasonable workplace drug policy.”
Many employers aren’t planning changes to how they handle drug and alcohol use, despite the new law.
Lauren Izaks, co-owner and chief operating officer of Deerfield-based All Points Public Relations, said she plans to keep her workplace drug- and alcohol-free but will ask her attorney to review the policy, specifically the parts that address medical marijuana users. She said the company might be able to erase the part of its policy
dealing with medical marijuana now that recreational use is legal.
The company, which has nearly 30 employees, hasn’t drug-tested in the past, and won’t start now, she said.
“As long as they’re not using it directly at work or before work hours, then what they do on their own time is their own business,” Izaks said of recreational marijuana use.
Many employees feel the same way. About half of 1,000 Illinois residents surveyed in October said their ideal workplace would allow employees to use cannabis but only during their off-hours, according to a poll conducted for communications firm Burson Cohn & Wolfe. About 60% of those surveyed said they were very or somewhat uncomfortable with the idea of colleagues showing up to the office stoned.
Some see gray area
Attorney Stephanie Dodge Gournis is advising companies to have clear policies in effect and apply them consistently and in a nondiscriminatory way. For example, if an employer wants to test a prospective hire for a certain type of job, the employer should test all applicants for that job.
As with other workplace policies, employers need to ensure they’re not treating people differently based on race, religion, gender and other categories protected from discrimination under federal law.
“Human resource professionals in Illinois will have their hands full with ensuring their policies are consistent with the new legislation and are nondiscriminatory,” said Becky Krueger, director of the Illinois Society for Human Resource Management State Council, in an email.
Some, however, say the law, even with the amendments, may not be so clearcut.
For instance, a different Illinois law prohibits employers from discriminating against employees based on their use of legal substances when they’re off work. Though the recent amendment was meant to clarify that employers may still discipline employees for failing a drug test, in line with a reasonable drug testing policy, labor and employment attorney Stahr said there’s still some gray area.
One problem is drug tests can detect whether someone has used marijuana but not when or whether the person is impaired.
“The tension is if an employer decides to withdraw an offer of employment or terminate someone based solely on a positive marijuana test, without any additional signs of impairment, I think that leaves room for a question about whether they’re taking action based on someone’s lawful use of marijuana while they’re (off) duty,” Stahr said.
According to the law, an employer may consider a worker to be impaired or under the influence of cannabis if the employer has a “good faith belief” the employee is displaying symptoms that are hurting job performance, such as those affecting speech, agility or demeanor.
But it might be difficult to fire an employee based only on those signs, said Tom Cuculich, executive director of the Chicagoland Associated General Contractors, a trade association representing general contractors, subcontractors, suppliers and affiliates in commercial construction. Because marijuana impairment can be difficult to prove, Cuchlich said he’s been advised that terminating an employee based only on impairment could invite a legal challenge.
Also, Stahr questions the law’s requirement that employers have “reasonable” drug policies. “What’s reasonable to you might be different than what’s reasonable to me,” she said.
For example, if a test uncovers a low level of marijuana, is it reasonable to withdraw a job offer? If an employee can offer an explanation as to why marijuana use during off-hours doesn’t affect his job performance, is it reasonable to still fire that person for a positive test result?
Experts say the new law is likely to spark litigation as employers and workers test their rights. In other states, courts have often sided with employers, Gournis said.
Given some of the uncertainty, many Illinois employers are taking a waitand-see approach, watching how the next six months to a year go before deciding whether they need to modify their policies, Gournis said.
Richard Price, owner of Alamo Shoes in Chicago’s Andersonville neighborhood, said he doesn’t plan to begin drug testing for the time being — though he acknowledged that the legalization of marijuana could pose new challenges.
“You used to be able to smell someone coming in if they were high,” he said. “With edibles, you don’t even know.”
Testing may limit labor pool
Some employers might take a mellow approach to workers who use weed, such as by ending drug screens. But other businesses might double down on efforts to keep pot out of the office. Some employers will continue to prohibit pot because of federal rules that require them to do so.
In Illinois, more than 99% of employers who used the drug testing company Quest Diagnostics included marijuana in their employee drug testing from 2014 through 2018, according to Quest.
In other states where recreational marijuana became legal, many employers continued to test for it. In Nevada, 91% of companies that used Quest included marijuana in their testing in 2017, when it was legalized there. The numbers were even higher for employers in Colorado and Washington, where 96% and 97%, respectively, of companies using Quest still tested for marijuana in 2017 even though those states also allow recreational use.
When deciding whether to test employees, companies also may want to consider whether testing could leave them short-staffed, Gournis said.
“What may drive employers’ decisions in this regard is whether they’re still able to recruit the workforces they need with the policies they enforce,” she said.
But some employers won’t have a choice, given that marijuana is still illegal under federal law. Truck drivers, bus drivers and train operators still will be tested for marijuana under U.S. Department of Transportation rules. Companies that contract with the federal government or receive federal grants will have to maintain drug-free workplace policies.
It’s already difficult to find truck drivers, and the new law might shrink that labor pool even further, said Todd Maisch, president and CEO of the Illinois Chamber of Commerce.
“More people will feel freedom to either experiment or (use) recreationally from time to time that wouldn’t have when they were worried about getting arrested,” Maisch said.
‘Dangerous situations’
The Illinois chamber initially opposed the bill to legalize recreational marijuana but took a neutral stance once it was agreed that employers still would have the right to maintain drug-free workplaces and communities would be able to opt out of allowing sales locally and impose additional taxes on cannabis sales. The chamber pushed for the amendment Pritzker signed in December to clarify employers’ rights.
“The two things our members said were ‘We need to make it more explicit you can do random drug testing, and make it clear that a zero-tolerance policy leading to discipline is allowed under the law,’” Maisch said.
Many members of the commercial construction trade association appreciated the clarification, Cuculich said.
“If someone is impaired, it’s not only that person’s safety but everyone on the job site,” he said. “You can create a lot of dangerous situations.”
About 81% of employers that responded to a 2019 survey for the National Safety Council said they were concerned about cannabis having a negative effect on their workforce. The Itasca-based organization urges employers to prohibit workers in safety-sensitive jobs from using cannabis, even in their free time.
Other employers, however, aren’t as worried, saying they trust workers or simply have bigger issues to tackle.
Jack Gordon, manager at Ashland Tire & Auto in the Lakeview neighborhood, said his business doesn’t drug-test employees and doesn’t plan to change that stance. The shop has fewer than 10 employees, many of whom have been there for decades.
“I would think it would be no different than alcohol,” he said. “You can’t drink on the job, and you can’t smoke pot on the job.”
Price, with Alamo Shoes, said he has more daunting challenges when it comes to running a retail business. Alamo employs about 19 people.
“I have about 97 other things I’ll lose sleep over before one of my employees coming in stoned,” he said.