Van-Lear Eckert
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New pot law poses dilemmas for employers

| Dec 5, 2019 | Employment Law |

Recreational marijuana use will become legal in Illinois on Jan. 1. Employers may, however, need to change their drug-screening policies for marijuana to avoid employment law problems.

The new law still permits employers to keep a drug-free workplace. Legislation amending the new recreational cannabis law allows employers to conduct reasonable, random and nondiscriminatory drug testing. Employers can also fire or discipline employees or withdraw a job offer for failing a drug test.

But, employers may still face legal risks if they take an employment action solely on a positive cannabis test. Laws, such as the state’s right to privacy in the workplace act, forbid an employer from disciplining a worker only for doing something illegal away from work.

Employers may uphold a drug-free workplace, but could only act if an employee is impaired by marijuana. A positive test for cannabis, on its own, may be insufficient to discipline a worker. Employees, according to the new law, should have the right to appeal a finding that they are impaired.

An employee may be considered impaired or under the influence cannabis if the employer has a good faith belief that the employee shows specific and explainable symptoms while they are working that reduces the performance of their duties. These symptoms involve their speech, dexterity, coordination, demeanor or irrational and unusual behavior.

The law also allows consideration of a workers’ negligence or carelessness with operating equipment or machinery, disregarding other workers’ safety or careless behavior that causes harm to other workers or individuals. Their involvement in accidents that seriously damages equipment or property, or disruption of manufacturing may also be considered.

Any conflicts between the new cannabis laws and existing privacy statutes may be eventually reconciled in court cases. But, according to some attorneys, employers should stop pre-employment screening for cannabis.

Federally licensed workers, however, may still face restrictions. For example, truckers who have a commercial driver’s license may be disciplined for a failing test and lose their CDL license because marijuana is still an illegal narcotic under federal law.

Employees may need legal representation if employers violate their rights under their drug policies. An attorney may help assure that their rights are protected and that they can seek damages.