The Blunt Truth | Seyfarth Shaw LLP | Medical & Recreational Marijuana Updates
The Blunt Truth is written by the attorneys at Seyfarth Shaw and provide updates and analysis of medical marijuana laws and regulations. The Blunt Truth aims to be a go-to source for updates, reports and analysis on the changes in cannabis laws and regulations and how they impact your business.
Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.
Now that the public comment period for the Food and Drug Administration’s new CBD rules has closed, the agency is planning to release regulations by late summer or early fall of this year. Any clarity for this industry would be welcome news indeed.
California may beat the FDA to the punch on CBD laws, as a bill allowing the use of CBD in food, drugs and cosmetics is making its way through the legislature. It enjoys bipartisan support and is expected to pass.
Two weeks ago, we reported on a Senate bill to encourage research on CBD and marijuana research. Not to be outdone, the House has introduced a similar piece of legislation.
In other federal news, the Senate Banking committee is scheduled to hold hearings on cannabis banking next week. Watch this space for more details!
You’ll recall that lack of banking servicesis causing problems for West Virginia’s medical marijuana industry. The state is now going to try again to find service providers.
Meanwhile, in Utah, there’s been a delay in announcing the winners of the state’s medical marijuana licenses. Instead of this week, applicants will have to wait until the end of the month.
We’ve got two news items from New Hampshire this week. Both involve the state’s governor, Chris Sununu. First, he rejected a medical marijuana expansion bill, and second, he signed a bill allowing those with prior convictions for possession of small amounts of cannabis to have those convictions annulled.
Finally, in what has been described as “a typical Vermont story,” someone has planted 34 cannabis plants in the Vermont statehouse garden. The plants will be removed, but law enforcement has decided not to pursue a criminal case.
In Dallas, a yoga studio offers CBD-infused kombucha.
In Philadelphia, a decorated chef serves an elegant CBD-infused four-course meal to a nattily dressed group of fifty.
In Kentucky, the Peaches & CBD Cream burger competes in Lexington Burger Week.
A vendor at an arts festival in Colorado offers CBD Hot Dogs from his hot dog cart.
In Minnesota, a brewer offers a pint of craft beer that contains 13mg of CBD.
Bartenders drip CBD tincture into drinks. Dogs maul CBD-infused specialty treats. And CBD-infused foods are popping up (and in some cases being shut down) all over the country.
Cannabidiol, also known as CBD, is a non-intoxicating compound found in cannabis and hemp, said to have certain medicinal qualities. And while it may make the consumer feel good, legal uncertainty surrounding its sale have been known to cause headaches in entrepreneurs and lawyers.
The 2018 Farm Bill changed federal law to permit the broad cultivation of hemp (defined in the legislation as a cannabis plant with not more than 0.3% THC), as well as the transfer of hemp-derived products across state lines for commercial purposes, without restriction on the sale, transport, or possession of hemp-derived products. The Farm Bill also established a shared state-federal regulatory scheme for licensing the cultivation of hemp. And while the Farm Bill removes hemp-derived products from Schedule 1 under the Controlled Substances Act of 1970, it does not explicitly legalize CBD generally under federal law – it only creates exceptions to Schedule 1 status when the CBD is produced specifically in conformity with the Farm Bill, and with other federal and state regulations.
Taken in concert with state cannabis decriminalization efforts, the result is that domestically-produced CBD is generally far more available and easier to obtain in most states. Nonetheless, uncertainty abounds with regard to the legal status of CBD at both the state and federal level, and restaurants that wish to serve CBD-infused foods must carefully navigate to avoid crossing legal lines. Compounding the federal is-it-or-isn’t-it question are state regulations that continue to evolve, with rules and regulations filling the void of uncertainty in some states.
Meanwhile, the FDA is considering whether to classify CBD as a pharmaceutical ingredient (which would place significant restrictions on – or even flat-out prohibit – its use in food products) or permit its use as a nutritional supplement. The Federal Food, Drug, and Cosmetic Act already prohibits adding even approved drugs to food in interstate commerce, and has issued a statement proclaiming: “We are aware that there may be some products on the market that add CBD to a food or label CBD as a dietary supplement. Under federal law, it is currently illegal to market CBD this way.” Still, the FDA has looked the other way and has declined to comment on which instances of sale might prompt legal action.
The FDA recently completed a public comment period, and has announced that it plans to report on its progress towards issuing rules and regulations by end of summer / early fall 2019. Any insights into its regulatory plans will have wide-ranging impacts on CBD availability and business planning.
But despite the legal uncertainty, CBD’s rise in popularity is undeniable, with approximately 65 million consumers having tried it, according to Consumer Reports, for purposes ranging from anxiety reduction, sleep improvement, and as an anti-inflammatory.
Twelve states (and a thirteenth likely on the way in California) currently have laws explicitly permitting hemp-derived ingredients to be added to food. However, some states and municipalities – most recently and notably New York City – prohibit the sale of CBD edibles at the retail level, requiring restaurant operators and food producers to cease sales of what had been a flourishing market.
In some states, restaurant operators are taking advantage of the legal void, operating on the presumption that it’s ok until someone says it’s not ok. And in most states, lawmakers aren’t doing very much to clear up the legal situation – at least not comprehensively. Instead, laws and regulations are popping up sporadically. In Massachusetts, they’ve banned the use of CBD in alcoholic beverages, but the restaurant space is still vaguely unregulated. In California, licensed “consumption cafes” offer CBD in meals, but bartenders are now prohibited under the state’s legalization laws from serving CBD-infused cocktails, which they previously offered. Since recreational legalization, Seattle has cracked down on previously-operating CBD food businesses, now requiring a license (of a type that has not yet been created).
Through all of the fog, one point remains abundantly clear: food industry professionals who wish to cash in on the CBD craze need to navigate carefully and work with expert counsel to learn the federal, state, and municipal regulatory framework that applies to them in order to assess the risk/reward analysis that factors into their business plans.
Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.
First of all, are you headed to CannaVest West this month? Catch Seyfarth’s Stan Jutkowitz on the July 23rd panel discussing “Cannabis Real Estate: What You Should Know Before Buying, Selling or Leasing Property for Cannabis and Hemp Use.”
The big news this week was the House Judiciary Committee’s hearing on cannabis laws and the racial disparity in their enforcement. See a summary here, and the full hearing, along with witness statements, at the Committee’s website.
Meanwhile, on the state level, activists are working to put recreational marijuana initiatives on the 2020 ballot in Arizona, Arkansas and Montana (where there are not one, but two campaigns). Obviously, we’ll be following these activities closely.
In other state news, Hawaii has decriminalized possession of small amounts of cannabis, after legalization attempts there failed earlier in the year. Shades of New York…
And low THC cannabis oil is now legal in Kansas, which otherwise has some of the most restrictive laws in the country.
Turning our attention to the international arena, a college in Israel is now offering a bachelor’s degree in medical marijuana. And in New Zealand, the government has released proposed medical cannabis regulations, looking to start a program in 2020.
The concern over how legalization would effect marijuana use by teenagers appears in many campaigns opposing more widespread availability of cannabis. Now, a new study seems to indicate that use by teens has dropped in those states that have legalized adult use.
Finally, if you’re interested in the intersection of marijuana and religion, have a listen to this podcast. Sister Kate has founded a group called Sisters of the Valley, a group of nuns who grow cannabis in California.
But the action is not all in the legislative branch. The Supreme Court declined to hear a case challenging the tax provisions of section 280E. You may recall that this section prevents tax credits or deductions going to those dealing in illegal drugs; the marijuana industry would very much like that section to not apply to them.
Meanwhile, several states recently legalized hemp and low THC oil. Florida will start producing commercial hemp, and it’s now legal to possess low THC cannabis oil in Kansas. In Louisiana, residents may now use industrial hemp, with some restrictions.
But what’s happening in North Dakota, you ask? Supporters of adult-use cannabis, undaunted by their defeat just last year, are preparing another ballot initiative for the 2020 election.
And in Minnesota, Alzheimer’s disease is now a qualifying condition for medical marijuana. But sales of medical cannabis in West Virginia probably won’t happen until 2021 or 2022. What’s the reason for the delay? Lack of banking services.
Speaking of banking, the American Bankers Association sent a letter to regulators, asking for clarity on rules governing financial services for hemp businesses.
Election season is in full swing in theU.S. Are there people with cannabis connections running for office? Why, yes there are! Barry Grissom is running for the U.S. Senate from Kansas, and Bill Levin is running for Governor of Indiana.
And finally, Gene Simmons has opened a marijuana dispensary in Los Angeles. It’s call, of course, the KISSpensary.
If you are a cannabis business trying to operate in California (and now possibly Illinois too), you’ve probably heard that you need to enter into a peace agreement (also known as an LPA. But what is that?
An LPA is an agreement a cannabis business enters into with a union. The agreement includes obligations for both the union and the cannabis business.
In California, the Bureau of Cannabis Control issued a regulation that recreational cannabis companies who employ 20 or more employees need to enter into a “labor peace agreement” with a union or provide a notarized statement that they will do so in order to receive their license to operate. 16 C.C. R § 5600(20).
Now, Illinois’ most recent cannabis legalization bill also specifies that businesses seeking marijuana licenses with the state must be given credit for demonstrating “a plan of action” to “engage in fair labor practices, and provide worker protections.” The “General Assembly supports and encourages labor neutrality in the cannabis industry.” The bill also defines a “labor peace agreement,” as an agreement between a cannabis business establishment and any labor organization recognized under the National Labor Relations Act. House Bill 1438 (Cannabis Regulation and Tax Act).
While the final version of the Illinois bill removed language making a labor peace agreement a requirement to obtain licenses, the implications are there.
Why does this matter?
Having a union at the workplace means that the company and the employees don’t work as closely on the terms or conditions of employment because a third party—the union—is involved and needs to agree on the terms on behalf of the employees.
Some companies believe that by entering into a peace agreement employees automatically have to unionize, but that’s not the case. A peace agreement simply states that a cannabis company will allow the union reasonable access to talk to its employees.
Some companies believe that by entering into a peace agreement, companies are required to enter into net neutrality agreements, but that is not the case either. The peace agreement only requires union access in exchange for the union’s agreement not to disrupt or interfere with the business or employer’s operations.
Some companies believe that they cannot negotiate the terms of the peace agreement, that too is inaccurate. While some unions have template peace agreements, some will agree to negotiate the terms. Other unions will accept peace agreements drafted by or prepared on behalf of the company. These agreements should be prepared and negotiated with the assistance of counsel.
What should a cannabis business do once it has a peace agreement? It is important for companies to be prepared and know the signs of unionization. Under the National Labor Relations Act (NLRA), there are many things a company can and cannot do while employees are trying to unionize. To avoid future litigation or claims of impropriety, companies should provide management level training to its supervisory employees regarding unionization.
Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.
Our first big story is legalization in Illinois. The law takes effect on January 1, 2020. That makes 11 states and the District of Columbia that have legalized recreational cannabis.
If you’re wondering why Illinois has succeeded where New York and New Jersey failed, the Marijuana Business Daily has a great piece discussing that very phenomenon.
There was some movement in New York, however. The legislature decriminalized cannabis, once legalization failed.
In other state action, Maine has approved regulations for its recreational marijuana industry. Sales are expected to begin in 2020. In New Hampshire, the governor signed a bill allowing physicians’ assistants to prescribe medical cannabis, and in Massachusetts, regulators have approved proposed rules allowing marijuana cafes and delivery services.
Moving out west, Oregon would very much like to sell its surplus cannabis in other states, but federal law stands in its way. The governor signed a bill allowing the export of marijuana, but there’s no federal policy allowing interstate transport.
Significant action happened in the U.S. House, as legislators passed an amendment to a spending bill to prohibit the Justice Department from taking action against marijuana businesses in states where it is legal. The Senate must also approve this rider, so no promises this will appear in the final bill.
We don’t often mention Idaho in this column, as its policies are among the strictest in the nation. But that might be about to change. Advocates of legalization have filed an initiative to put medical marijuana on the 2020 ballot. Assuming the initiative is approved, the next step is collecting signatures. Stay tuned for further developments.
And in international news, Ireland has legalized medical marijuana, and Switzerland is looking to do the same. In Canada, the first mobile app marketplace for alcohol (the aptly named Boozer) is looking to expand into the cannabis space.
Welcome back to The Week in Weed, your Friday look at what’s happening in the world of legalized marijuana.
First, we have an entry for the “Better Luck Next Time” files. New York failed to pass a legalization deal. Perhaps cannabis proponents will have better luck in 2020.
Their neighbors to the south are making some progress on medical marijuana expansion. But the jury’s still out on whether New Jersey governor Phil Murphy will sign the legislation.
Directing our gaze further south, Mississippi‘s Medical Marijuana 2020 has two-thirds the number of signatures they need to put medical marijuana on the ballot. The deadline to turn in petitions is September.
State attorneys general have been quite vocal about cannabis lately. Now Virginia Attorney General Mark Herring is calling for the state to decriminalize marijuana.
But what about hemp, marijuana’s straight arrow cousin? Texas has legalized it, and the Postal Service will ship it, but banking is still a problem.
Speaking of banking, the House Appropriations Committee has passed the 2020 Financial Services and General Government bill, which includes protections for banks serving marijuana companies in states where cannabis is legal. These protections last only one year.
Other House activities surrounding cannabis this week included a hearing before the Small Business Committee on the difficulties the industry has dealing with the Small Business Administration.
Finally, we have news of a new campaign from the Edmonton Police Service. “Put your Skunk in the Trunk” is the name of their effort to get people to keep their marijuana stowed away legally. Note: you really want to click on the link to see the poster they’re using.
Following closely on the heels of a similar law in New York City, effective January 1, 2020, it will be unlawful for Nevada employers to reject a job applicant who tests positive for cannabis on a pre-employment drug test. While there is debate as to whether some medical and recreational cannabis laws, including in Maine, allow an employer to take action based on off-duty or off-premises cannabis use, when it comes to job applicants, Nevada law could not be more clear.
Nevada Assembly Bill 132
As we previously reported here, New York City employers will no longer be able to require job applicants to submit to a cannabis test as a condition of employment. There are certain exceptions to the New York City law, including pre-employment drug testing for, among others, people applying to work in certain construction jobs and driver applicants subject to Department of Transportation drug and alcohol testing regulations (Part 40).
Nevada quickly followed suit. On June 5, 2019, Governor Steve Sisolak signed Assembly Bill 132, which makes it unlawful for any Nevada employer to fail or refuse to hire a prospective employee because they submitted to a blood, urine, hair, or oral fluids drug test and the results of the test revealed the presence of cannabis.
The law also provides that if an employer requires an employee to submit to a screening test within the first 30 days of employment, the employee shall have the right to submit to an additional screening test, at his or her own expense, to rebut the results of the initial screening test. The employer shall accept and give appropriate consideration to the results of the second screening test.
Of course, there are exceptions. Specifically, the prohibition does not apply if the prospective employee is applying for a position as a firefighter or an emergency medical technician (as defined in state law), or if the position will require them to operate a motor vehicle for which federal or state law mandates the employee submit to screening tests. AB 132 also states the law does not apply to a position that, “in the determination of the employer, could adversely affect the safety of others.” Moreover, the law does not apply to the extent it is inconsistent or otherwise in conflict with the provisions of an employment contract, a collective bargaining agreement, or federal law, or to a position funded by a federal grant.
Implications for Employers
Nevada employers should review their existing drug testing or substance abuse policies to determine whether changes are necessary in light of the January 1, 2020 effective date of AB 132. Employers may also need to consider working with their drug testing vendors and Medical Review Officers to ensure that job applicants are not tested for cannabis or that such tests are not reported in the final test result. Although AB 132 gives employers discretion to determine whether a position is exempt because it “could adversely affect the safety of others,” it remains to be seen how Nevada courts will interpret this exemption and, thus, Nevada employers should work with employment counsel experienced with drug and alcohol testing laws and programs to evaluate whether a position fits this standard. Finally, until courts address the type of “employment contract” that might exempt a particular job applicant from the law, employers should exercise caution before relying on a vague term left undefined by the statute.
Nationwide employers are finding it increasingly difficult to stay head of the pot craze sweeping the nation. Employers in certain states, like California, can take some comfort in clear language in statutes or court decisions that grant employers the right to maintain a drug-free workplace and take action against those who test positive for cannabis, including rejecting job applicants testing positive for the drug. Yet, those states may become the exception rather than the rule, with more courts finding that employers are required to comply with state disability laws when confronted with medical cannabis users and jurisdictions now stepping in and granting protections to off-duty cannabis users. Now more than ever, employers in all jurisdictions should consider a more proactive approach to stay ahead of this evolving area of the law.
On February 19, 2019, the Michigan Court of Appeals considered whether a job applicant rejected for a position due to a positive test result for marijuana could sue under the state’s Medical Marihuana Act (MMA). At issue was the following from the MMA:
“A qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act . . . .”
In an unpublished decision, the court affirmed dismissal of the complaint finding that the MMA “does not provide an independent right protecting the medical use of marijuana in all circumstances, nor does it create a protected class for users of medical marijuana.” (The court converted the decision to a published decision on April 23, 2019.) In addition, the court noted that because the City “would have been able to terminate plaintiff’s employment at any time after her employment began for any or no reason, it logically follows that the [City] could rescind its conditional offer of employment at any time and for any or no reason at all.” In other words, the plaintiff had no “right” to a job with the City and, thus, had no basis to bring suit under the MMA. Of course, this leaves open the question of whether the case would have turned out differently had the plaintiff been offered something other than an at-will position. Importantly, nothing in the decision suggests that its analysis is limited to public entities and, thus, private employers may benefit from its reasoning as well.
The medical cannabis laws in the United States vary greatly. Some states, like Connecticut, Maine and Massachusetts, have ruled that an employee testing positive for cannabis can bring suit against an employer for enforcing their drug-free workplace policies. Additional states provide employment protections to medical cannabis users, including Arizona, New York, and others. Thus, it is difficult for employers to have a “one-size-fits-all” policy regarding cannabis use. Employers are encouraged to work with experienced employment counsel before taking action against a medical cannabis user and continue to monitor developments in this evolving area of law.
Illinois Governor J.B. Pritzker is expected to sign a comprehensive recreational cannabis bill. While the “Cannabis Regulation and Tax Act” contains extensive provisions preserving an employer’s right to ban cannabis and otherwise have a “zero tolerance” substance abuse policy, there are potential traps for the unwary and, thus, employers should carefully consider how the new law will impact their existing substance abuse and drug testing policies and procedures.
Across the country, states are moving to legalize medical and recreational cannabis. In states that legalize recreational cannabis, employers and drug testing services have seen significant increases in positivity rates for cannabis metabolites. Wider cannabis use will require employers to take action to ensure safe work environments for their employees, especially in safety sensitive settings. Drug policies must be updated and must address discrimination concerns. To that end, we are closely monitoring new forms of discrimination claims from medical cannabis users and regarded-as disabled employees. See our recent blog concerning a related Arizona court decision. We also are monitoring what appears to be a new trend in states and localities expressly restricting employer use or consideration of positive test results for cannabis in pre-employment situations, as we reported has occurred in New York City and Nevada.
Illinois’ Cannabis Regulation and Tax Act
The Illinois legislature has just taken the route of full legalization of recreational cannabis. On May 31, 2019, it approved House Bill 1438, which will create the “Cannabis Regulation and Tax Act.” That same day, Illinois Governor Pritzker tweeted that he intends to sign the Act.
The Act provides, among many other things, that effective January 1, 2020, Illinois residents 21 years of age or older may legally possess up to 30 grams of cannabis flower, no more than 500 milligrams of THC contained in cannabis-infused products, and 5 grams of cannabis concentrate. Non-Illinois residents will be able to legally possess 15 grams of cannabis flower, no more than 250 milligrams of THC in cannabis-infused product, and 2.5 grams of cannabis concentrate. Permitted cannabis purchases must be made from licensed cannabis dispensaries.
The House Bill also provides an excise tax imposed on purchasers for the privilege of using cannabis. The rate of the excise tax is either 10%, 20% or 25% of the purchase price, depending on whether the sale is for a “cannabis-infused product” and the level of delta-9-tetrahydrocannabinol (THC) (i.e., strength).
The Act’s Employment Provisions
Relevant to employers is Section 10-50, which states that the Act is not to be construed as prohibiting an employer from “adopting reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.” The Act does not require employers to permit an employee to be under the influence of or use cannabis in the employer’s workplace or while performing the employee’s job duties or while on call. Employers also retain the right to discipline an employee or terminate their employment if they violate the employer’s employment policies or workplace drug policy. While the Act defines the term “workplace” to include the “employer’s premises” (any building, real property, and parking area under the control of the employer or area used by an employee while in performance of the employee’s job duties, and vehicles (leased, rented or owned)), it goes on to state that “workplace” may be further defined by the employer’s policy so long as the policy is consistent with the Act.
The Act provides guidance to employers in determining whether an employee is impaired by or under the influence of cannabis while working. Specifically, an employer can meet this showing if it has a good faith belief that an employee manifests specific and articulable symptoms while working that decrease or lessen the employee’s performance of their job including:
symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery;
disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property;
disruption of a production or manufacturing process; or
carelessness that results in any injury to the employee or others.
The list is non-exhaustive, which leaves room for an employer to rely on other indicia of impairment. The Act does not regulate drug testing and, thus, additional indicia might include a positive test result for cannabis if the employee is sent for a reasonable suspicion test. However, given that cannabis can remain in a person’s system for a few weeks, and the Act’s standard for impairment requires facts showing an issue with an employee’s performance, most employers cannot take action against a current employee based solely on a positive test result where no other indicia of impairment exists.
If an employer disciplines or terminates an employee because they are under the influence of or impaired by cannabis, the employer must provide the employee a reasonable opportunity to contest the basis of the determination. Exactly what this means remains to be seen.
No Private Right of Action
The Act expressly states that employees do not have a private right of action against an employer for:
subjecting an employee or applicant to reasonable drug and alcohol testing under the employer’s workplace drug policy, including an employee’s refusal to be tested or to cooperate in testing procedures;
disciplining the employee or terminating employment, based on the employer’s good faith belief that an employee used, possessed, was impaired by or was under the influence of cannabis in violation of the employer’s workplace policies while in the employer’s workplace, performing the employee’s job duties or while on call; and
injury, loss or liability to a third party if the employer neither knew nor had reason to know that an employee was impaired.
Interplay with the Illinois Right to Privacy in the Workplace Act
Employers should also bear in mind that the Act designates recreational cannabis used in compliance with the Act as a “lawful product” subject to the protections against discrimination provided under the Illinois Right to Privacy in the Workplace Act. This means that an employee who lawfully uses cannabis outside of work and is not impaired by or under the influence of cannabis during working hours (while on duty or while on call) should generally not be subject to adverse employment action on that basis alone. Thus, employers should carefully consider whether to test for cannabis or consider a positive test result for the drug in pre-employment situations given that job applicants are neither on duty nor on call. In terms of drug tests during employment (e.g., reasonable suspicion and post-accident), while the Act leaves open the possibility of relying on a positive cannabis test result as additional indicia of impairment, cannabis can remain in the system for weeks and, thus, employers should exercise caution and work with employment counsel before taking action against incumbent employees based solely on a positive cannabis test result. Employers also should consider training their managers on the signs of impairment and, if an employee is referred for any drug test, steps to take if the employee tests positive for cannabis.
Regulated Employers and Government Contractors
Notably, cannabis remains a Schedule I controlled substance under federal law and, thus, illegal, which might put some Illinois employers in a difficult situation. Fortunately, the Act does not require employers to ignore their obligations under federal law, expressly stating that it is not to be construed to “interfere with any federal, State, or local restrictions on employment including, but not limited to, the United States Department of Transportation regulation 49 CFR 40.151(e)” nor does it impact an employer’s ability to “comply with federal or State law or cause it to lose a federal or State contract or funding.” It is therefore likely the Act will be interpreted to allow employers to continue to maintain employment policies prohibiting any cannabis use where necessary to comply with applicable federal or state law. However, it is not certain whether such policies would result in a violation of the Illinois Right to Privacy in the Workplace Act.
Next Steps for Employers
The Act states that “cannabis should be regulated in a manner similar to alcohol.” But, what does this mean for employers? Cannabis, unlike alcohol, is still illegal under federal law and signs of cannabis use or impairment are not as easily detectable as alcohol impairment. Moreover, it also is easier to prove alcohol impairment with an alcohol test. The same cannot be said for a drug test given that cannabis can remain in the system for several weeks.
The new law does not strip employers of the right to conduct drug tests pursuant to a drug testing or substance abuse policy and, in fact, expressly preserves it. Yet, Illinois employers should:
review and, if necessary, revise their current policies and practices in advance of the January 1, 2020 deadline;
determine whether to include cannabis or consider the drug in pre-employment drug tests; and
train their managers on how to document and recognize the signs of use and impairment and steps to take if an employee tests positive for cannabis after a reasonable suspicion or post-accident drug test.
Employers should be vigilant in documenting all signs and evidence of potential impairment, including any violations of occupational safety rules. At the end of the day, employers will have to walk a fine line of balancing their drug policy objectives against applying that policy in a nondiscriminatory manner. Further, employers will need to track the forthcoming regulations closely, and may need to further revise their policies to accommodate unexpected interpretations of the law.