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How Should Employers Respond to Legal Pot?

Pot in the Workplace?

Illinois legalized the use of marijuana for more than three-dozen medical conditions starting in 2016, and by the end of 2017, nearly 35,000 people had applied for the program. Earlier this month, the legislature voted to allow the use of marijuana in lieu of prescription painkillers, to help avoid opioid addiction, which Governor Bruce Rauner is considering whether to sign.

And if Democratic candidate J.B. Pritzker defeats Rauner in this November’s elections, he has taken the position that he wants to legalize marijuana use in the state for recreational purposes, for the tax revenue it will bring into the state and the law enforcement and prison resources it will save. So where does this leave employers who still want to regulate its use in the workplace?

The Illinois Medical Cannabis Act says that employers cannot “discriminate” against medical cannabis users—yet it simultaneously says that employees must follow a no-tolerance policy handed down by their employer. Which has seemed ripe for litigation and developing case law that could come down to why the employer chose to have such a policy, and how necessary it seems on a case by case basis.

If a recreational marijuana law passes, the provisions of interest will be different, of course. Such a law almost certainly would not require that employers permit marijuana to be consumed, possessed or, most of all, sold on their premises; they likely would be able to adopt policies prohibiting any or all of those occurrences. Nor would the law be likely to create a legal cause of action against an employer who discharges an employee for violating such a policy.

Another provision to watch will what, if anything, such a law changes about employer drug testing requirements—will it be pre-employment and probably cause testing only, or will employers have more freedom to randomly test, particularly after an accident of some sort. Will employers be required to have a written drug testing policy, use certain approved laboratories or have all results reviewed by a state agency? Among other technical details.

Finally, will there be any restrictions on how employers are permitted to punish employees if they come to work stoned? Can they fire at will on a first positive test result in the workplace, for example, or might they be required, as in some states, to provide the opportunity to participate in an employee assistance program—so that the Jeffrey Lebowskis among their staff can clean up their acts—at least when they’re on the clock?

It seems unlikely that candidate Pritzker or those in the legislature who would like to legalize recreational marijuana have put these provisions in their proverbial pipes and smoked them, but business owners will want to chew on them when the time comes.