Recreational cannabis: MARBA outlines workplace implications

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Cannabis

With the legalization in Illinois of adult recreational cannabis (making the state the 11th in the nature to legalize the drug), the Mid-America Regional Bargaining Association (MARBA) representing unionized employers and unions, has posted an outline of the legal issues regarding cannabis and employment status/workplace safety.

“In addition to legalizing recreational cannabis use, the CTRA (Cannabis Regulation and Tax Act) amended the Illinois Right to Privacy in the Workplace Act which prohibits employers from taking disciplinary action against employees who use lawful products outside work (e.g., alcohol, tobacco, marijuana),” MARBA reports.

“The CRTA instantly caused concern and confusion in the business community regarding employers’ rights and liabilities relative to drug testing, including those employer’s signatory to the MARBA collective bargaining agreements. However, on Nov. 14, 2019, the Illinois legislature passed an amendment (“trailer bill”) to the CRTA that clarified many outstanding questions, including employment based questions.

“Among those clarifications were employer’s rights and liabilities for acting against an employee for testing positive for cannabis,” MARBA reports in its newsletter, noting:

• Employers cannot refuse to hire a candidate or discharge an employee based solely on the fact that an individual is a recreational marijuana user or because an individual possesses a medical marijuana card.

• Employers can maintain, reasonable and non-discriminatory workplace drug policies whereby they:

    • prohibit employees from possessing , distributing and/or using cannabis at work (including in parking areas and company-controlled vehicles) or being under the influence of cannabis while performing job duties or while on call.
    • take actions, including discipline or termination, based on a good faith belief that an employee used, distributed and/or possessed cannabis in the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s workplace drug policies.
    • subject an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.
    • take actions, including discipline or termination of employment, based on the employer’s good faith belief that an employee was impaired as a result of the use of cannabis, or under the influence of cannabis, while at the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s workplace drug policy.
    • If an employee or candidate informs an employer that he/she possesses a medical marijuana card, the employer should engage in the interactive accommodation process.
    • The MARBA collective bargaining agreements all contain provisions relating to drug testing which have been negotiated with the various unions. Employers that take action pursuant to those provisions, provided they are applied in a reasonable and non-discriminatory manner, will most likely be held to have complied with the intent of the CRTA.

There are special considerations of course for employers with a “medical marijuana card” who may be entitled to ‘possess’ marijuana at work, so a “blanket provision on possessing marijuana at work may be overboard, MARBA says.

“Specific questions regarding compliance with the CRTA and any other laws amended by the CRTA should be addressed with legal counsel,” MARBA says.

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