To Smoke or not to the Smoke? Why Illinois Employers Have the Power to Regulate Off-Duty Cannabis Use

I was in Springfield the first week of January when I saw a group of individuals lined up outside of a non-descript office building on a cold evening near the hotel where I was staying. I surmised, correctly, that it was a cannabis dispensary. Illinois reported first-day sales of cannabis: $3.17 million.

As the initial hoopla surrounding the legalization of cannabis has died down, the conversation has shifted to more practical considerations raised largely by employers and employees alike: What workplace drug policies should employers adopt? Does my employer get to fire me if I test positive for marijuana, even if I used it during non-work hours?

As I noted in a previous posting on the cannabis law, the legislature did not place any restrictions on employers’ ability to impose drug-free workplace policies or, for that matter, be required to make exceptions for medical marijuana users under these policies.

Because of the way the body metabolizes cannabis, this raises a particularly thorny issue for employers who plan to continue testing for marijuana. Are employers prepared to reject every job applicant and terminate every employee who tests positive for marijuana – knowing that the metabolite THC remains in someone’s system for up to 30 days following use? Or should employers be more concerned about whether an employee comes to work impaired?

Workers Employed in Safety-Sensitive Jobs

For those working in safety-sensitive positions or are subject to the U.S. Department of Transportation’s drug testing guidelines (e.g., commercial driver, public transit), employers are not likely or, for that matter, be barred under federal law from permitting off-duty use of marijuana due to mandated random drug testing.

Similarly, colleges or universities who receive federal funding and, therefore, must comply with the Drug-Free School and Communities Act Amendments, may be required to enforce zero-tolerance drug policies against all of its employees, regardless of the job they hold at these institutions.

Although the law in Illinois did not include a safety-sensitive carve-out provision, it did expressly state that individuals employed as law enforcement officers, corrections officers, probation officers, paramedics, and firefighters can be subject to employer policies barring them from using marijuana off-duty.

Other safety-sensitive jobs are likely to include construction, working with heavy machinery, health care, working with children.

Drug Testing: The Limits of Today’s Technology

Anyone who has studied cannabis use will tell you that there is no lab test currently available that can tell if someone is impaired due to their use of cannabis. Thus, the current way employers drug test – via a urine specimen – merely provides evidence that sometime in the previous 30 days the employee used marijuana. That’s it.

At a recent business chamber meeting I attended the speaker, a benefits attorney, offered guidance on how employers can determine whether an employee is impaired by paraphrasing the language found in the cannabis law.

Unfortunately, this language describes the extreme scenario, where an employee displays behavior indicative of one of the following circumstances: impairment due to recent drug or alcohol use, or suffering from a medical condition requiring medical attention:

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 … symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery … involvement in any accident that result in serious damage to equipment … or carelessness that results in any injury to the employee or others.

410 ILCS 705/10-50(d).

The more difficult scenario arises when someone is not symptomatic but tests positive after undergoing a random or workplace accident drug test (without regard to whether the employee placed him or herself in harm’s way). Based on a zero-tolerance drug policy, an employee would be terminated based solely on the fact he/she tested positive for the presence of marijuana metabolites.

But even under a drug policy requiring proof of impairment, in the absence of overt symptoms of impairment, how is an employer expected to make that determination? We already know that the presence of marijuana metabolites in a urine sample cannot be used to determine intoxication or impairment. This differs from alcohol, where there is a direct correlation between a person’s blood alcohol concentration and his or her level of impairment.

One expert who studied the effect of cannabis for more than 20 years while working at the National Institute on Drug Abuse, Marilyn Huestis, when asked about assessing driver impairment due to marijuana, pointed to the Drug Recognition Expert (DRE) 12-step protocol as the only reliable method available to evaluate whether a driver is legally impaired. To qualify as a DRE expert, one must undergo 72 hours of classroom training (over 9 days) and undergo 40-60 hours of field certification.

Huestis readily acknowledges the immense scientific hurdles to coming up with an objective standard for measuring impairment based solely on marijuana use.

Medical Marijuana Users Caught in the Cross Hairs of Workplace Drug Policies

Today, 33 states have enacted medical marijuana laws. The expansion of medical marijuana laws throughout the U.S. reflects the growing need for safer alternatives to pain killers such as opiates, whose use has devastated the lives of countless individuals and their families.

Since 2015, medical marijuana has been available for purchase in Illinois. According to the state’s most recent statistics,102,519 Illinois residents have received a medical marijuana card.

Although Illinois’ cannabis law does not except medical cannabis users from employer workplace drug policies, recent case law suggests that courts have begun siding with medical cannabis users terminated solely on testing positive for marijuana – typically after undergoing a workplace accident drug test. A critical factor cited by several of these courts was the absence of proof that the former employee used marijuana while at work or showed signs of impairment.

Will Evolving Views on Marijuana Influence Workplace Drug Policies?

In 2019, the Pew Research Center found that 67% of Americans support the legalization of marijuana, while only 8% oppose the drug’s legalization (recreational or medicinal). In 2010, 52% of Americans opposed marijuana’s legalization.

According to a Gallup survey conducted in July 2019, 12% of U.S. adults reported using marijuana. Men are more likely to use marijuana than women (15% v. 9%). The largest category of users by age group, not surprisingly, are 19 to 29 (22%).

Whether you believe legalizing marijuana is sound public policy is beside the point if you are a company based in Illinois or in one of the other ten states that has legalized the drug. The question going forward for employers: do you intend to implement drug policies that will regulate employee marijuana use outside of the workplace?

Given that a certain percentage of an employer’s workforce may be using marijuana during their off hours, does it make sense to impose a zero-tolerance policy -- particularly if a company randomly drug tests and/or tests following workplace accidents. A zero-tolerance policy, as previously discussed, will have an adverse impact on any employee using marijuana for medicinal purposes -- resulting in costly and otherwise avoidable legal fees for employers.

I do not believe that a zero-tolerance policy is necessary to ensure the safety of the workplace that is not engaged in safety-sensitive work. Moreover, it could have the unintended consequence of turning away qualified job seekers put off by a zero-tolerance drug policy.

In the absence of federal oversight, employers can eliminate marijuana from its drug screen panel, except in those instances where the employer, based on a reasonable, good-faith suspicion, tests an employee it believes may be drug impaired.

How employers choose to respond to the legalization of marijuana will no doubt be informed by their own attitudes about the drug. Given American’s shifting views about legalization, some employers have a difficult decision to make.

Do they follow the hyperbolic lead of those who believe the sky is falling in because marijuana is now legal? Or, do they take a more nuanced approach that entails looking at the nature of their business, whether substance abuse in the workplace has been a problem in the past, the median age of their workforce, for example.

At the end of the day, let’s not forget that employers and employees both want the same thing: a safe workplace.