With Illinois becoming the 11th state to allow adults to use recreational marijuana starting Jan. 1, employers are contending with questions about how to adjust.
Training managers to recognize marijuana impairment and anticipating future legal challenges are among issues in need of answers.
There are some certainties. The new law will not force employers to change whether they conduct drug testing, and it still allows them to enforce zero-tolerance drug-use policies at work on all employees.
But some employers — especially those in the transportation and manufacturing industries and other fields in which safety is critical — worry about how to make pot policies effective.
“We can maintain the drug-free policies, tell employees that they cannot be intoxicated at work. But at the same time, how do we enforce it?” said Jim Shanchuk, president of Silver Crown Valet in Naperville. “I’m concerned.”
Some, such as the Naperville Park District, which has a zero-tolerance policy, say they plan to keep strict anti-drug rules in place.
“We aren’t going to lessen our expectation of staff,” said Katie Sepe, the district’s director of human resources. “We’re a public employer. We’re held to a higher standard than private employers. We need to maintain a safe workspace.”
Others say they don’t require drug tests and don’t plan to start.
“It doesn’t make sense to think about drug testing,” said Greg Gordon, owner of Dog Patch Pet & Feed in Naperville. “For this business, it would be restrictive in terms of who I could find to hire.”
Elgin restaurateur Greg Shannon, who owns Elgin Public House and Grumpy Goat Tavern, said his 50 to 60 employees aren’t tested for drugs. The company policy prohibits drinking on the job, and the same will go for marijuana come Jan. 1, he said.
“Whether it’s illegal or not, it’s just like alcohol — if you’re under the influence while you’re working, that’s not going to be a good thing,” he said. “We’ll rewrite the policy a little bit come time, but basically it will be the same.”
Getting manufacturers to talk about marijuana legalization wasn’t easy, with some saying they didn’t want to be associated with the topic. Hoffer Plastics in South Elgin; Elgin Sweeper Co. and its parent company, Federal Signal Co. in Oak Brook; and American NTN Bearing Manufacturing Corp., Platinum Cargo Logistics and John B. Sanfilippo & Son Inc., all in Elgin, declined to comment or didn’t return calls.
One exception was Kim McBride, chief financial officer and co-owner of MBC Aerosol in Elgin, who said she’s done research and attended an informational session offered in April by the St. Charles Chamber of Commerce.
MBC Aerosol doesn’t do preemployment drug screenings and is not planning to update its policy after Jan. 1, McBride said. If there are on-the-job injuries, workers are automatically sent to the hospital and screened for alcohol and drugs, she said.
“They can be terminated for that, because you cannot be intoxicated or under the influence of anything while operating tools,” she said.
As businesses ready themselves before the law goes into effect, here is how experts advise them to prepare.
Step 1: Review policy
Even if no major policy changes are planned, experts agree it’s smart to conduct a review before Jan. 1 to ensure all drug-related policies fit the organization’s culture and set clear expectations.
Some things to keep in mind:
• Safety, both in the sense of physical well-being and data security. For employers who hire safety-sensitive positions, “drug testing is a responsible thing to do,” said Carol Semrad, treasurer of the Chicago chapter of the Society of Human Resource Management who runs her own consulting business, C. Semrad & Associates.
“What a lot of employers do is they just have in their handbook that you can’t come to work impaired. They include in that drugs and alcohol … .” Semrad said. “If you want to partake in recreational marijuana, you certainly can do that; however, you have to perform the job. Period.”
• Testing procedures. Employers need to spell out when employees will be tested, especially in cases where there is reasonable suspicion of marijuana intoxication. Policies should describe how suspected use will be identified, when and where testing will be conducted, how intoxication will be proven, and any repercussions, said Rusty Magner, managing director and benefits adviser at TrueNorth Companies in Rosemont.
Policies about what triggers a mandatory drug test need special care, experts say.
“In the past, if someone tested positive for drugs, it was a pretty clear-cut way to go straight to termination. It’s not going to be anymore,” said Mary Lynn Fayoumi, president and CEO of Downers Grove-based HR Source. “(Businesses will) need stronger, clearer policies. If employers decide to send someone to testing, they’re going to have to document why.”
• At-will employment. With this as the baseline, said Michael LeRoy, a professor in the School of Labor & Employment Relations and the College of Law at the University of Illinois at Urbana-Champaign, employees can be fired for any reason or no reason, unless there is a law against it, such as laws preventing discrimination based on factors including race, sex, age, national origin, disabilities, pregnancy, citizenship status, religion or marital status. “There isn’t an express prohibition” related to recreational marijuana use, LeRoy said, which means employers retain the right to fire employees for this reason.
Step 2: Training
Managers are used to spotting signs of alcohol intoxication, but marijuana intoxication is something new. Doctors say its symptoms are nonspecific — inappropriate giddiness, sedation, mild euphoria.
“These are very difficult to put an absolute criteria on and say, ‘This represents cannabis intoxication,'” said Dr. Gregory Teas, an addiction expert and psychiatrist at Amita Health in Hoffman Estates. “There are certainly criteria, but they’re relatively vague.”
Another tricky thing about marijuana intoxication, said Dr. Aaron Weiner, director of addiction services at Linden Oaks Behavioral Health, is the fact marijuana is metabolized at different rates person to person.
“Impairment can persist long after THC (tetrahydrocannabinol, the mind-altering component of the cannabis plant) is no longer detectable in the blood,” Weiner said, “and even after someone feels like they’re no longer impaired.”
Conversely, marijuana can stay in the system for weeks, so testing positive doesn’t necessarily mean someone is impaired.
HR consulting groups, safety organizations, insurance brokers and employee assistance program operators are beginning to offer training so managers can reliably identify signs of marijuana intoxication, Fayoumi said.
“If managers don’t know how to determine reasonable suspicion,” she said, “that’s a real issue.”
Attorney Derke Price of Ancel Glink in Naperville, who serves as corporate counsel for the village of South Elgin, said it’s a good idea to have multiple human resources representatives trained in the observation of drug impairment, so there are at least two witnesses who can attest an employee shows signs of being under the influence.
Step 3: Watch courts
Cases under the Illinois Right to Privacy in the Workplace Act will be among those to keep an eye on as employers and the legal system determine how to enforce the marijuana use permissions given under the Cannabis Regulation and Tax Act, legal experts said.
State law, Fayoumi said, allows off-the-job use of lawful substances, and marijuana is soon to be one of them.
But employers still will need to follow federal laws. That means certain transportation workers, federal employees and people employed by companies that secure government contracts will need to remember marijuana remains a prohibited Schedule I drug at the national level.
Employers and employees should be aware of legal precedents that highlight the divide between state and federal marijuana laws, said attorney Michael D. Wong of SmithAmundsen in St. Charles. He pointed to a Colorado Supreme Court ruling in a case brought by a man who used medical marijuana and was fired by his employer when he tested positive for THC in a random drug test.
The Colorado court ruled in 2015 in favor of the employer, saying businesses can fire employees who use medical marijuana — even if the use was off-duty and allowed under state law — because it violates federal law.
That’s not to say the same ruling would be handed down in Illinois, but the precedent is likely to be looked at in similar cases involving marijuana, whether recreational or medical, Wong said.
Experts agreed the line for what type of marijuana drug testing result qualifies as impairment is likely to be tested in the courts. “That’s a huge gray area that is yet to be resolved,” TrueNorth’s Magner said.
Employers can enact policies that say if drug testing yields trace amounts of THC, disciplinary action can be taken, said attorney Ross Molho of Clingen, Callow & McLean in Lisle.
However, if tested in court, employers might have a stronger argument for jobs that have a physical safety component, such as driving forklifts, versus desk jobs, like computer coding, he said.
“You may have the legal right to do something, but if it doesn’t make any sense, it makes it certainly more difficult to defend,” he said.
And in light of the labor shortage, employers — except in heavily regulated industries including child care — can’t write off every single marijuana user as a potential employee, particularly among younger workers who might view the drug with the same ease as they do alcohol, Molho said.
Wong also pointed out employers in some parts of the country have to contend with difficulties in finding drug-free employees, such as in areas heavily affected by the opioid epidemic.
Overall, experts said, Illinois employers and employees are expected to ease into the new recreational marijuana norm in a few years.
“Everyone is freaked out about this new law, excited about it. They think it’s going to be real revolutionary and incredibly impactful in the workplace,” Fayoumi said. “And a few years out, it’s just not that big a deal. Everyone gets used to dealing with it.”