by Karl R. Ottosen (Spring 2020 Newsletter)
2020 has come with new employment related matters which most of us never expected to face. One, which now seems ages ago, is the legalization of recreational cannabis in Illinois, which requires all employers to update policies and practices.
Except for certain regulated transportation employees, CDL-licensees, and public safety personnel (and possibly employees funded by Federal contracts or grants), employees may not be denied employment or be disciplined for lawful use of cannabis. Thus, hiring processes-including applications, interview questions and drug screening, require review and revision. Employees may be prohibited from using, possessing, and being impaired by use of cannabis at work. Policy review is required, and collective bargaining agreements also must be negotiated given the impact of the legalization of an illegal controlled substance pursuant to federal laws.
Policies and collective bargaining agreements should clearly describe prohibited activity, define “workplace,” and “work day” (include meals and rest periods, and overtime or on-call time). Is there a reasonable period of time before the start of the workday during which employees are to be prohibited from use to prevent impairment? What is impairment; how is it displayed? Who is responsible for noting the basis for a reasonable belief an employee is impaired? Has the employee suspected of being impaired been given an opportunity to explain his or her condition before being ordered for a drug test? All of these issues and more need to be clearly addressed in policies and union contracts.
Given that the current testing processes are generally unable to accurately indicate the level of impairment or time of use, the description of perceived impairment will be critical in any disciplinary process. Supervisors need to be trained in identifying signs of impairment and in appropriately documenting them.
Cannabis needs to be accepted as a legal product in Illinois. This is a difficult shift in mindset for many people. Employers are encouraged to address an employee’s use of cannabis in a similar manner as their use of alcohol. Penalties for policy violations should take into consideration that alcohol and drugs can be addictive for many people whose use is not readily controlled. Required treatment options as conditions of less severe discipline may be appropriate. Employers are urged to take each case individually and ensure legal issues are carefully analyzed before imposing discipline.