Illinois is the most recent state to pass legislation legalizing the use of cannabis starting January 1st of 2020. Illinois joins 9 other states along Washington DC in protecting employees from discipline for non-work marijuana use, which would mirror current laws for tobacco and alcohol use “off the clock”. How should employers navigate through these state recreational marijuana laws while keeping a “balance” with current Federal law that considers marijuana a class 1 illicit drug?
1. Identify any Safety Sensitive Positions Regulated by Federal Law
a. Employers in certain industries like manufacturing, construction, or logistics hire for very specialized and highly regulated positons (i.e crane operators, large axel semi-trucks, and heavy machine operators). These types of positons require a “zero tolerance” when it comes to marijuana use even “off duty” due to the liability it can pose by being under the influence while at work. Regulators like the Department of Transportation (DOT) have specific mandates and drug testing requirements for employers covered by the DOT. Employers must adhere to these standards and obligations under the Drug-Free Workplace requirements even for positive marijuana drug tests.
2. Manager Training for Reasonable Suspicion Standards
a. Employers need to understand just like alcohol employees may not be under the influence while at work whether they are in a state that has recreational marijuana laws or not. Therefore, it’s crucial to train certain key managers within the organization on identifying indicators and behaviors that an employee may be under the influence. Align you company with a vendor or clinic that can administer the drug test in a timely and consistent manner.
3. Don’t Use Previous Marijuana Convictions Adversely
a. Majority of states that have approved marijuana for recreational use, have also included language in the law that previous marijuana convictions may be expunged from the applicants criminal history, therefore making the record non-reportable on an employment background check. Employers that receive drug-related offenses pertaining to marijuana can be held liable for using the information adversely in the hiring process.
4. Remove Marijuana from the Drug Test Panel
a. Majority of clients are now removing the marijuana or (cannabinoid) portion of the drug test all together. However, there are still up to 12 other drugs that can be tested for during the employment hiring process. They are:
i. Amphetamines; Barbiturates; Benzodiazepines; Cocaine; Methadone; Opiates; Phencyclidine; Propoxyphene; Methamphetamine; Tricyclic Antidepressants; Oxycodone; Buprenorphine