Illinois Employers, Unions Prep for Legal Marijuana Jan. 1

The legalization of recreational cannabis in Illinois could add side letters and other addenda to existing collective bargaining agreements and lead to union challenges if workers are accused of on-the-job impairment due to marijuana use, employment lawyers and labor leaders said.

Illinois Gov. J.B. Pritzker (D) June 25 signed into law HB 1438, the Cannabis Regulation and Tax Act, which makes recreational use of marijuana legal in the state on Jan. 1. People 21 or older will be able to purchase up to 30 grams of cannabis for recreational use from licensed dispensaries.

Employers still will be able to impose zero-tolerance drug policies at work sites. But the law could lead to increased disciplinary challenges because employees may dispute whether they are impaired due to cannabis use when they report for work.

“This is a very big deal for almost every employer out there, but the impact of the law varies dramatically determined by what kind of business you’re in and the processes you already have in place,” said Todd Maisch, Illinois Chamber of Commerce president and chief executive officer.

Jinouth Vasquez, a Seyfarth Shaw LLP employment lawyer in Los Angeles who counseled clients in the runup to legalized recreational cannabis use in California, said she didn’t begin receiving calls from clients until after the California law went into effect Jan. 1, 2018.

“We have a lot of clients in Chicago that have already been taking steps to figure out what to do,” Vasquez said. “But in California it wasn’t until that January when they really started asking what they needed to do with their policies, testing, and applicants. Those were the big three things.”

Testing for Impairment

Workers who need a valid commercial driver’s license—such as truck and school bus drivers—are likely covered by U.S. Department of Transportation safety regulations, which make the consumption of marijuana illegal on or off the job and preempts any state laws. Under the new Illinois law, corrections officers, law enforcement officers, and other public-sector workers are prohibited from consuming marijuana on or off the job as well.

“Public-sector employers are largely going to be unaffected, certainly with respect to public works,” said Jill O’Brien, a Laner Muchin Ltd. partner who deals with labor issues.

Applying the law could get complicated when it comes to disciplinary actions over worker impairment due to alleged marijuana use. Under the law, employers must possess a “good faith belief” employees are under the influence of cannabis because of exhibited symptoms listed in the statute, including altered speech, physical dexterity, and irrational behavior. But just how to determine cannabis impairment under an Illinois collective bargaining agreement is largely unknown because such agreements typically don’t mention legal cannabis.

To deal with legal weed, existing labor agreements might be supplemented by side letters or memos of understanding spelling out appropriate standards employers could use to establish whether workers are impaired due to cannabis use, Robert Bruno, University of Illinois labor and employment relations professor, said in an interview. Such agreements could determine what is acceptable behavior and how employers could discipline a worker impaired on the job due to cannabis, he said.

“Since an employer could still insist on a drug-free workplace, it’s conceivable that the employer would have to come forward with some sort of language that would be an addendum to the contract that would say, ‘Here’s how just-cause protections are going to apply to cannabis and here are the steps the employer will take if they felt an individual was impaired,’” Bruno said.

When amending existing collective bargaining agreements, employers will push to clarify whether cannabis is allowed on or off duty, emphasizing that even legal drugs such as cannabis may constitute a policy violation, O’Brien said. And unions will want to amend existing agreements if the language currently says an employee can be fired or disciplined for testing positive for drugs, given that test results to detect cannabis in employees’ systems alone won’t show impairment, she said.

No Standards

Unlike breathalyzer tests that can detect alcohol consumption, there’s no standardized test to determine impairment by marijuana; employees could test positive for marijuana days or even weeks after the impairing effects of the drug have worn off.

“Are you high on the job? No. But are you going to have something in your system if they pull hair or blood? That’s unfair,” said Zach Koutsky, Local 881 United Food and Commercial Workers legislative and political director. “We would probably push back on that.”

Koutsky and lawyers representing employers agreed that tests to detect the presence of marijuana in an employee’s system alone won’t be enough evidence to discipline workers under the new Illinois law. Vasquez said employers should train their supervisors to identify common signs of marijuana impairment to create better arguments in disciplinary actions.

Yet, technology needs to catch up to the law so impairment can be measured, said Tim Drea, Illinois AFL-CIO president.

“It’s pretty crazy that a person could use a legal product on a Friday and five, six, seven, eight days later go through a drug test, which determines either you have the substance in your system or you don’t. And then being disciplined at work when certainly there is no impairment at all,” Drea said.

Some states’ laws and court decisions applying those laws say that a positive drug test alone isn’t enough to impose disciplinary action for alleged marijuana use, said George Voegele, a Cozen O’Connor PC member and employment law specialist. “You have to demonstrate the individual was truly impaired. It really is a change, a much more pro-user change in the law and the culmination of a development we’ve seen in various states over the past few years.”

Employer Policies

Pritzker Dec. 4 signed another bill, SB 1557, to clean up language in the June legislation and strengthen employer abilities to enforce corporate drug policies. Neither law prohibits employers from adopting reasonable zero tolerance or drug-free workplace policies provided that the policies are applied in a nondiscriminatory manner.

Illinois prohibits certain state employees, spouses, and family members from employment in the cannabis industry for one year after a worker leaves the state’s payroll.

“Illinois’ law is very much the strongest in the nation in terms of supporting employers’ efforts to keep the workplace safe and keep drugs out of the workplace,” Maisch said.

Another impact the law will have on the state’s employment scenario: job creation. Koutsky said over the next five years as many as 65,000 direct and indirect jobs could be created by the Illinois recreational pot industry, with perhaps a majority of those hires joining unions.

“I think Illinois will have the second-largest legal cannabis industry in the country, after California, because we have millions of visitors a year, plus Chicago is the third-largest city in the domestic market,” he said. The law allows for up to 500 retail locations to receive permits to sell recreational marijuana.