Failing a drug test may not kill the buzz for medical marijuana patients in the Empire State.  In contrast to courts in California and other jurisdictions, a New York state court has held that medical marijuana users are entitled to reasonable accommodations, even if they only obtain certification after testing positive for marijuana.

In Gordon v. Consolidated Edison, Inc., Kathleen Gordon failed a random drug test by her employer, Consolidated Edison, Inc. (“CEI”).  After testing positive, but before her termination, Gordon became a certified medical marijuana patient to treat her inflammatory bowel disease.  Gordon informed CEI of her certified status on several occasions between the time she failed her drug test and her termination date.  Gordon brought an action alleging discrimination and failure to accommodate under New York State and City Human Rights Laws (“NYSHRL” and “NYCHRL”), as well as the State’s medical marijuana law.  Because New York’s medical marijuana law provides that certified patients are disabled for purposes of the NYSHRL, Gordon claimed protected status.

CEI moved for summary judgment, arguing that Gordon was not a member of a protected class because she failed the drug test before she obtained a medical marijuana certification.  CEI asserted that Gordon had informed CEI that she had smoked marijuana before the drug test and before she was certified as a medical marijuana patient. CEI also argued, among other things, that the company had an unwritten practice to discharge employees who had worked for less than six months for their first violation of the drug policy.

The New York Supreme Court denied summary judgment on the termination claim.  First, the court found that Gordon was a member of a protected class because she was certified as a medical marijuana patient prior to her termination and had informed the company of such status.  Second, although CEI’s practice of terminating new employees who fail their first drug test was a legitimate, non-discriminatory reason for dismissing Gordon, the court held that there remained a material issue of fact as to whether the reason was pretextual because that practice was not specified in the company’s drug policy.

The court also denied summary judgment for CEI on Gordon’s reasonable accommodation claim because Gordon informed CEI of her medical marijuana certification but CEI did not appear to engage in a “good faith interactive process to assess her needs and the reasonableness of the accommodation requested.”  While CEI claimed that any reasonable accommodation would require it to violate the Drug-Free Workplace Act, the court declined to find an undue hardship because the company’s drug policy allows employees (or at least those who have been employed for more than six months) to continue working even after failing a drug test.

Notably, the court treated the NYCHRL and NYSHRL claims the same.  Although the NYCHRL does not define disability to include medical marijuana use, the court held that because the protections of the NYCHRL are more expansive than those under the NYSHRL, medical marijuana status constitutes a disability under the NYCHRL.

This case serves as a reminder to New York employers that all drug testing policies must be clearly written and capture the company’s actual practices regarding testing and any resulting consequences.  More importantly, prior to terminating or taking an adverse action against an employee who is a medical marijuana patient, the company must be sure to engage in an interactive dialogue and consider any reasonable accommodations.  The NYSHRL and NYCHRL anti-discrimination protections and reasonable accommodation obligations kick in once an employer receives notice that an individual is a certified patient, even if such status is obtained after failing a drug test for marijuana.

Notwithstanding numerous restrictions limiting access to many resources during the ongoing coronavirus (COVID-19) pandemic, marijuana users in states where medicinal and adult use is legal may still have access to cannabinoid supplies. Even as states, counties, and municipalities increasingly restrict or shut down business activities to stem the spread of the virus, many jurisdictions will keep medical marijuana dispensaries open as “essential” businesses like pharmacies and grocery stores.

Medical Marijuana Dispensaries Deemed “Essential” Businesses

Shelter in place orders and other “pause” mandates have been implemented from California to Illinois to New York, shutting down all businesses and jobs except those considered “essential” for the public’s safety, health, and well-being. As with other matters of public policy, the types of businesses considered “essential” and exempt from the restrictions vary by jurisdiction.[1] However, as business groups scramble to determine whether they are “essential,” the medical cannabis industry has will generally be able to operate – albeit with some changes in support of COVID-19 considerations.

Public health officials throughout California, including in Los Angeles, San Francisco, Santa Cruz, Monterey, and Contra Costa counties have all affirmed that marijuana businesses will not be closed. Similarly, Connecticut, Illinois, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Mexico,  New York, Ohio, and Pennsylvania have declined to urge or require licensed marijuana businesses to shut down, generally because they fall under agricultural or medical industry exemptions.

Marijuana dispensaries are being treated like pharmacies in part because industry representatives, providers, and patients have reminded policy makers of the importance of access to marijuana. Marijuana industry leaders reason that cutting off access to medical marijuana, where legalized, would harm patients and potentially force them to acquire marijuana on the black market, where the products may contain pesticides and other components that may endanger patient health. Additionally, guaranteeing uninterrupted access to marijuana may prevent panic-buying, bottlenecks in the supply chain, and crowded dispensaries. This has already been reported in some states where guidance was unclear or late in coming.

Temporary COVID-19 Measures

While allowing dispensaries to remain open, state and local governments have taken other precautions in response to the ongoing coronavirus pandemic. In Maryland, regulators have instructed dispensaries to suspend the use of “sniff jars”—containers full of marijuana flowers that customers may smell—and over-the-counter interactions. To decrease person-to-person contact and promote social distancing, states including Colorado, Illinois, Maryland, Massachusetts, Michigan, Nevada, New Hampshire, New Mexico, Oregon, Pennsylvania, and Washington are permitting curbside pick-up for medical marijuana, have relaxed restrictions on delivery, and even encouraged patients to place larger individual orders.

It’s Work from Home, Not Work While Stoned

While the marijuana industry may be feeling some relief, continued access to marijuana may pose problems for other employers. As more companies implement work from home policies, there is an increased risk that employees may choose to use legal medicinal or recreational marijuana while “on the clock.” While perhaps difficult to police, employers may be able to reduce the risk by encouraging employees to maintain similar routines and work hours as they would when they are in the office. Clarifying work expectations and policies for newly remote workers is good practice regardless of COVID-19. It reminds them that all expectations for performance, behavior, and conduct are still in place – wherever they are working.  Regular contact with remote employees can help an employer’s workforce stay connected and positive in these difficult times, while also discouraging those who might treat work from home days as they might a snow day.

 

*Michelle Wright with EBG Advisors, a Strategic Consultant not admitted to the practice of law, contributed to the preparation of this post.

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[1] For example, California and New York have each provided lists and examples of businesses that will be considered “essential.”

With 2019 nearly rolled up, it is time to exhale and recap the latest dose of marijuana laws affecting the workplace.  In the last twelve months, Illinois became the eleventh state to legalize recreational marijuana use by adults[1] and several other jurisdictions passed or modified their existing laws governing marijuana and the workplace.  Below is a summary of this year’s developments and some thoughts about what 2020 might bring.

Illinois Legalizes Recreational Marijuana Use

On June 25, 2019, Governor Pritzker signed the Illinois’ Cannabis Regulation and Tax Act into law, legalizing the use and possession of marijuana for adults age 21 or older starting January 1, 2020.  The law, since modified, includes extensive workplace protections for employers, permitting employers to enforce drug free workplace policies—including random drug testing—and discipline or terminate employees who violate those policies, so long as those policies are applied in a nondiscriminatory manner.  Employers are also shielded from liability for taking adverse actions against an employee based on the employer’s good faith belief that the employee is impaired or under the influence of marijuana while at work.

After enactment, questions arose as to whether Illinois employers who drug test their employees risked running afoul of the state’s Right to Privacy in the Workplace Act, which prohibits workplace discrimination based on an employee’s off-site and off-duty use of a “lawful product.”  Fortunately, the Illinois legislature subsequently passed an amendment to clarify that employers may take adverse action against employees or rescind offers to applicants who fail a drug test conducted pursuant to an employer’s reasonable policy.

Despite the amended law’s added protections for employers, employees nonetheless may have a private right of action for a bad faith termination of employment.  In addition, the amendments do not expressly address the question of whether an employer has a duty to accommodate an employee who provides a medical marijuana card or note from a doctor.

Expanded Workplace Protections for Marijuana Use

Employers should also be aware of the states and cities that provided new protections for marijuana users in 2019.  New Mexico and Oklahoma each passed legislation that prohibits employers from discriminating against employees because of their status as registered medical marijuana users; however, the Oklahoma law does provide an exception for safety-sensitive jobs and for situations which the employee possesses, consumes or is under the influence of marijuana at work.

In Nevada, a new law taking effect on January 1, 2020, prevents employers from failing or refusing to hire an applicant because the applicant tests positive for marijuana. Perhaps not surprisingly, New York City went one step further when it passed an Int. 1445-A, barring most employers from conducting any pre-employment testing for marijuana or THC.  The ordinance provides several exceptions to allow drug testing of applicants for safety-related positions, transport-related positions, caregivers, and certain federal contractors.

Similarly, New Jersey now prohibits employers from disciplining or terminating an employee solely based on that individual’s status as a registered medical marijuana user.  While the law does not prevent employers from prohibiting or disciplining employees from using marijuana during work hours or on workplace premises, Garden State employers with a drug testing policy are required to offer employees and applicants who test positive the opportunity to explain the positive result.

Looking Ahead to 2020

Given the recent trends, employers should expect another wave of marijuana legislation in the coming year.  Indeed, several states, such as Florida, Indiana, and Massachusetts are already considering bills that would prohibit discrimination against medical marijuana users and potentially eliminate most workplace drug testing for marijuana and THC.  After coming close to passing legal recreational marijuana in the prior legislative sessions, New York and New Jersey will likely see another push in the coming year.  New Jersey is slated to consider a ballot-initiative in a push to let voters decide whether to legalize adult-use recreational marijuana.

Employers should also be aware of potential federal action relating to marijuana.  In June, the U.S. House of Representatives approved an amendment prohibiting the Department of Justice from using appropriated funds to interfere with state-legal marijuana programs.  The House passed a second major marijuana bill in September, the Secure and Fair Enforcement (SAFE) Banking Act, which would protect banks and credit unions that serve cannabis businesses from being penalized under federal anti-money laundering and illicit finance laws.  Finally, in November, the House Judiciary Committee approved the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, which removes marijuana from Schedule I of the Controlled Substances Act and requires federal courts to expunge prior convictions for marijuana offenses.  Although significant marijuana legislation is unlikely to pass the U.S. Senate in an election year, Congress’s rumblings underscore a shift in public opinion that has already and likely will continue to drive states to legislate further in this area.

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[1] While still illegal under federal law, adult recreational use of marijuana is permitted in the District of Columbia and the following states: Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont and Washington.

Following an effort in the state legislature to legalize recreational marijuana, on July 29, 2019, Governor Andrew Cuomo signed S.6579A/A.8420 (the “Law”), a law decriminalizing marijuana possession in New York State. The Law will take effect on August 28, 2019. The Law expunges many past convictions for marijuana use and reduces the penalty for possession of small amounts (less than two ounces) of the drug from a misdemeanor to a violation.

Importantly, the Law does not legalize marijuana, and – relevant to this blog – therefore provides no employment protections for users or possessors of marijuana. But employers should stay tuned, as sponsors of the “Marihuana Regulation and Taxation Act” (S.1527B/A.1617B) – a bill to legalize adult-use marijuana in New York – have vowed to revive it in the next legislative session.

On August 9, 2019, Illinois Governor Pritzker signed legislation amending the state’s current medical marijuana pilot program. The Compassionate Use of Medical Cannabis Program Act (the “Medical Cannabis Act”) makes the medical marijuana program, which was initially enacted as a pilot program in 2013, permanent and expands the qualifying medical conditions for a medical marijuana card to include at least 12 new conditions, including chronic pain, irritable bowel syndrome, migraines, osteoarthritis, and ulcerative colitis. The Medical Cannabis Act also provides easier access to a medical marijuana card by expanding the range of medical professionals who can certify eligibility of applicants to the program. In addition to physicians, advanced practice registered nurses or licensed physician assistants can diagnose and certify an individual’s eligibility for the medical marijuana program. The amendments to the medical marijuana pilot program are effective immediately.

The Medical Cannabis Act continues to protect the status of a registered medical marijuana cardholder and prohibits an employer from discriminating against a cardholder based on his or her status as a registered qualifying patient of medical marijuana. However, employers may continue to take into account an employee’s medical marijuana cardholder status, if failing to do so would force the employer to violate federal law, such as the Department of Transportation regulations or the provisions of the Drug Free Workplace Act.

The Medical Cannabis Act does not change the express workplace protections previously included in the state’s medical marijuana pilot program. Employers should be able to continue to enforce zero-tolerance or drug free workplace policies, discipline a cardholder for violating a workplace drug policy, and discipline an employee based on a good faith belief that an employee is impaired at work. Similar to Illinois’ recreational marijuana law (the Cannabis Regulation and Tax Act) which takes effect January 1, 2020, if an employer disciplines a marijuana cardholder based on its good faith belief of impairment, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

However, employers should be aware that they may need to engage in an interactive process to determine whether they are able to accommodate an employee’s off-duty use of medical marijuana. Recent rulings in federal and state courts outside of Illinois have found that, depending on the language of the state’s anti-discrimination or medical marijuana statutes, the use of medical marijuana may be a reasonable accommodation for an employee, when the use occurs outside of working hours and does not adversely affect safety or job performance.  The Illinois Human Rights Act prohibits employment practices that discriminate on the basis of a person’s actual or perceived disability, if the disability is unrelated to the person’s ability to perform the job in question. Thus, for example, if an employee contests his employer’s impairment determination by informing his manager that he has a medical marijuana card for migraines, his employer may need to engage in the interactive process prior to taking a disciplinary action.

By legalizing recreational marijuana use and expanding the medical marijuana program, marijuana use in Illinois is likely to become more prevalent, and employers can expect an increase in marijuana-related issues to infiltrate the workplace.   Accordingly, Illinois employers should take steps now to ensure they are ready to address marijuana-related issues in the workplace. Some actions for employers to consider include:

  1. Review and update workplace drug policies to ensure employees are on notice of prohibited workplace conduct and the disciplinary action and process for violating the policy. The policy should include a written procedure for employees to be able to contest a cannabis-based disciplinary determination. In addition, for employment policies that cover employees in multiple states, consider whether to include state-specific information relating to Illinois’ medical and recreational marijuana laws effect on Illinois-based employees. Similar information may be required to tailor specific language for employees in other states that have their own recreational and/or medical cannabis regulations to ensure that employees clearly understand the state-specific cannabis regulations and the Company’s workplace drug policies.
  2. Review and update reasonable accommodation policies, as employers may need to engage in an interactive process and make an effort to accommodate an employee’s off-duty use of medical marijuana.
  1. Train supervisors on how to recognize, properly document and promptly report the signs of suspected marijuana impairment. Illinois’ medical and recreational marijuana laws provide specific symptoms to look for when making a determination that an employee is “impaired” or “under the influence” of marijuana,  including  the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment or machinery, disregard for the employee’s own safety or the safety of others, involvement in any accident resulting in serious damage to equipment or property, disruption of a production or manufacturing process, and carelessness that results in any injury to the employee or others. This training will help establish that an employer had a “good faith belief” that the employee was impaired on the job and therefore that discipline was warranted and lawful. This training should also include reminders that company policy must be applied in a nondiscriminatory manner.

Please contact James Oh and Kathleen Barrett if you would like to discuss assistance in preparing your workplace for handling marijuana-related issues in Illinois or elsewhere.

On July 16, 2019, the New Jersey Supreme Court (“Court”) granted certification to review the Appellate Division’s decision in Wild v. Carriage Funeral Holdings, which ruled that the New Jersey Law Against Discrimination’s (“LAD”) requirement that employers reasonably accommodate disabilities applied to an employee’s use of medical cannabis legally prescribed pursuant to New Jersey’s Compassionate Use of Medical Marijuana Act (“CUMMA”[1]). Employers may expect to see additional direction regarding their obligation to accommodate employees’ use of legally prescribed medical cannabis, particularly in light of amendments to CUMMA enacted after the Appellate Division’s decision.

In Wild, which we discussed in a recent client alert, plaintiff Justin Wild (“Wild”) alleged that his employer, Carriage Funeral Holdings (“Carriage Funeral”) failed to reasonably accommodate his disability (cancer) and unlawfully discharged him in violation of the LAD because he used medical marijuana, as legally permitted by CUMMA. Carriage Funeral terminated Wild’s employment after he tested positive for cannabis following an on-duty motor vehicle accident.

The trial court dismissed the lawsuit holding that the fact Wild tested positive for cannabis  constituted a legitimate business reason for his discharge because cannabis use (medical or otherwise) remains prohibited under federal law. In rendering its decision the trial court relied on a provision in the law stating that CUMMA did not require employers to reasonably accommodate licensed use of medical marijuana in the workplace. The Appellate Division reversed, holding that the fact that CUMMA did not “require” employers to accommodate an employee’s use of  medical marijuana in the workplace, did not affect an employer’s requirement under the LAD to reasonably accommodate an employee’s disability, which could include an employee’s off-duty and off-site use of medical cannabis.

As we recently reported, since the Appellate Division’s decision in Wild, New Jersey amended CUMMA. Among other things, the amendments (“Amendments”) prohibit employers from taking an adverse employment action[2] against a current or prospective employee based upon the individual’s status as a “registered qualifying patient” of medical marijuana. The Amendments additionally require employers that maintain drug-testing policies to offer applicants and employees the right to respond, in specific ways, to a drug test that came back positive for cannabis. Of particular note, the Amendments deleted the provision in the original statute stating that nothing in the act imposed “an obligation on employers to accommodate an employee’s use of medical marijuana.” Court-watchers will certainly be curious to see if the Court addresses the issue of requiring employers to accommodate what is still considered a federal crime, and whether not an employer may plead that it is a per se hardship to require them to accommodate an employee’s illegal acts, such as the use of medical marijuana.

This post was written with assistance from Radhika Gupta, a 2019 Summer Associate at Epstein Becker Green.

[1] The amendments to the law changed the statute’s name to the “Jake Honig Compassionate Use of Medical Cannabis Act.”

[2] Under the Law, “adverse employment action” means “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.”

On July 9, 2019, Hawaii became the 26th state to decriminalize possession of small amounts of marijuana. HB 1383 (the “Law”), which became law when Governor David Ige allowed the veto deadline to pass without signing or striking down the bill, decriminalizes the possession of up to three grams of marijuana. It will go into effect on January 11, 2020.

Under the Law, those caught with up to three grams of marijuana will no longer face jail time but will still face a fine of $130. This is the smallest amount of marijuana that any state has decriminalized so far. Currently, possession of any amount of cannabis is punishable by up to 30 days in jail, a criminal record, and a $1,000 fine.

The Law also provides for the expungement “of criminal records pertaining solely to the possession of three grams or less of marijuana.” The state has amended its expungement statute in order to reflect this change, noting that courts must grant an expungement order, provided the individual is not facing any other criminal charges, and provided that the amount of marijuana possessed was three grams or less.

The Law establishes a “Marijuana Evaluation Task Force,” in an effort to examine other states’ laws, penalties and outcomes related to the decriminalization and legalization of marijuana. The task force, which will be active until June 30, 2021, will make recommendations on further changing marijuana laws in Hawaii.

The Law does not provide employment protections for recreational users, nor does it modify Hawaii’s Medical Use of Cannabis Law, which was amended last year in part to form a working group to evaluate potential discrimination against medical cannabis users and the employment protections made available in other states.

Employers and health care professionals should be ready to handle issues that arise with the potential conflict between state and federal law in devising compliance programs, both in terms of reporting and human resources issues, including practices and policies addressing drug use and drug testing. States continue to consider – and pass – legislation to decriminalize and legalize cannabis (both medicinal and recreational), and we are slowly marching toward 50-state legalization. All organizations – and particularly those with multi-state operations – should review and evaluate their current policies with respect to marijuana use by employees and patients.

This post was written with assistance from Radhika Gupta, a 2019 Summer Associate at Epstein Becker Green.

On June 5, 2019, Governor Steve Sisolak of Nevada signed AB 132 (the “Law”), which prohibits employers from declining to hire a prospective employee based on pre-employment marijuana drug tests. On the heels of a new New York City law which prohibits employers from requiring pre-employment drug testing for marijuana and tetrahydrocannabinols (the active ingredient in marijuana), Nevada is now the first state to prohibit employers from using pre-employment drug tests to screen out applicants who use marijuana.

Under the Law, beginning January 1, 2020, employers in Nevada will be prohibited from denying employment to a prospective employee when that individual is required to take a drug test and the results of that drug test indicate the presence of marijuana. The Law also provides individuals who test positive for marijuana with the right to, at their own expense, rebut the original test results by submitting an additional drug screening test. This rebuttal procedure must take place within the first 30 days of employment. When the employee has chosen to rebut the original test results with a subsequent test, the employer must accept and “give appropriate consideration” to the results of the latter test.

The Law provides for a number of carve-outs and exceptions to the prohibition as follows:

Firefighters & Emergency Medical Technicians: Firefighters (defined as those who hold a license and either volunteer or are employed by firefighting agencies), and Emergency Medical Technicians (“EMTs”) (defined as those as having satisfactorily completed a program of training for certification as an EMT), are excluded from protection under the Law.

Motor Vehicle Operation: The Law does not apply to an employee who must operate a motor vehicle and submit to a screening test under federal or state law in order to operate the motor vehicle.

Employees who Affect the Safety of Others:  
If an employee, by the “determination of his or her employer,” could “adversely affect the safety of others,” then the Law’s protections will not apply to that employee. There is no further guidance as to what factors employers should consider in making this determination. Given the broad language of this provision, health care employees who provide patient care should be exempt from the Law.

Employment Contract or Collective Bargaining Agreement: The protections of the Law will not apply to the extent that they are inconsistent or otherwise in conflict with the provisions in an employment contract or in a collective bargaining agreement. The Law, however, is silent as to whether an employer may bargain to include such drug testing in a collective bargaining agreement or employment contract.  

Positions Funded by a Federal Grant: The Law’s protections do not apply to an employee who is in a position of employment “funded” by the federal government. Many federal contractors and all federal grantees must comply with the Drug Free Workplace Act (“DFWA”) and agree that they will provide a drug-free workplace as a precondition of receiving the contract or grant. Although the covered contractors and grantees must maintain a drug-free workplace, the specific components necessary to meet the requirements vary. The basic requirements do not include drug testing. Therefore, while many employers may perform drug testing in order to ensure compliance with the DFWA that does not mean that they are required to perform that drug testing. Thus, Nevada’s exception to employees “funded” by the federal government may exceed the requirements of the DFWA.

What Nevada Employers Should Do Now

To comply with this new law, Nevada employers should consider the following:

  • Review and consider whether to revise drug-testing requirements to ensure that they do not violate the new prohibition.
  • Revise pre-employment hiring procedures to account for employees’ right to rebut a pre-employment drug test that is positive for marijuana.
  • Review job classifications, and identify those that fit into one of the law’s exceptions for which such testing can still be required.
  • Train human resources personnel, as well as supervisors and managers, on any changes made to current policies and practices pursuant to the law, including permissive testing requirements during the pre-employment process, and on what may or may not be included in job postings.

Implications for Other States

Given the growing trend of laws that protect the use of medical and recreational marijuana and its derivatives, companies are increasingly reconsidering whether to require drug testing for applicants and employees. The Law in Nevada may be the first of its kind, but it is likely not the last, in light of rapidly changing attitudes about marijuana.  Indeed, Nevada Assemblywoman Nina Neal supported the Law despite opposing the earlier ballot initiative legalizing recreational marijuana because she did not want her constituents who lawfully used marijuana to be precluded from future employment.  It would not be surprising to see other states following Nevada’s lead, as they try to balance employers’ efforts to maintain safe and health work environments with a growing cannabis industry and increasing numbers of employees who lawfully use marijuana.

This post was written with assistance from Radhika Gupta, a 2019 Summer Associate at Epstein Becker Green.

On June 4, 2019, the Illinois legislature passed the Cannabis Regulation and Tax Act (the “Cannabis Act”).  Under the Cannabis Act, Illinois residents over 21 years of age may legally possess 30 grams of marijuana flower and five grams of marijuana concentrate for their personal use, starting January 1, 2020.  The 610-page Cannabis Act also provides the most extensive workplace protections for employers of any marijuana legalization statute around the country. Indeed, the Illinois General Assembly declares at the beginning of the Cannabis Act that “employee workplace safety shall not be diminished and employer workplace policies shall be interpreted broadly to protect employee safety.”  Illinois Governor J.B. Pritzker is expected to sign the legislation this month.

Section 10-50 of Cannabis Act specifically identifies the following protections for employers:

  • The Cannabis Act does not require employers to permit an employee to be under the influence of or use cannabis in the workplace or while performing the employee’s job duties or while on call.
  • The Cannabis Act does not limit or prevent an employer from disciplining or terminating an employee for violating an employer’s employment policies or workplace drug policy.
  • Employers can maintain reasonable zero tolerance or drug free workplace policies or employment policies concerning drug testing, smoking, consumption, storage or use of marijuana while in the workplace, while performing job duties off premises or while on call, if the policy is applied in a nondiscriminatory manner.
  • The Cannabis Act also amends the Right to Privacy In The Workplace Act, which prohibits employers from restricting employee use of “lawful products” away from work, by incorporating employer workplace protections set forth in Section 10-50 of the Cannabis Act into the Right to Privacy in the Workplace Act. The proper interpretation of this amendment to the Right to Privacy In The Workplace Act should be that even if an employee ingests marijuana legally in Illinois while off-duty, but the employer has a drug-free workplace policy and an employee tests positive for marijuana in his system from a random drug test, the Cannabis Act should allow an employer to terminate that employee even if not impaired at work without violating the law.  Indeed, during debate on the bill, the sponsor of the Cannabis Act acknowledged that Illinois employers will still be allowed to discipline or terminate an employee for failing a drug test, including a random drug test.
  • The Cannabis Act defines when an employer may consider an employee to be impaired or under the influence and allows an employer to discipline an employee based on a good faith belief that an employee is under the influence or impaired. However, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.
  • The Cannabis Act specifically provides that it does not create a legal cause of action against an employer who disciplines or terminates an employee based on the employer’s good faith belief that an employee was impaired from the use of cannabis or under the influence of cannabis while at work, performing job duties, or while on call in violation of the employer’s workplace drug The Act identifies a number of symptoms an employer can consider to support its good faith belief of impairment. The Act appears to leave open the possibility that a terminated employee could maintain a cause of action for a bad faith termination of employment.
  • The Act does not interfere with an employer’s ability to comply with federal or State law or cause it to lose a federal or State contract or funding.

Now is the time for Illinois employers to prepare for the effective date of the Cannabis Act (January 1, 2020).  Some action items to consider include:

  1. Consider whether to address with your workforce the legalization of cannabis in Illinois at all and, if so, how; e.g., will your company make a preemptive statement that cannabis impairment and/or usage while on the job will not be tolerated?  Will your company take a low-key approach to legalization and not raise it at all?  Or is there a middle-ground approach that your company takes to legalization?
  2. Evaluate whether the legalization of marijuana in Illinois will affect your workplace drug policies and employment policies pertaining to disciplinary action currently in place,  including whether to specify that on-the-job marijuana consumption or being impaired or under the influence of marijuana at work, or testing positive for marijuana in the system, are against company policy and could lead to disciplinary action, up to and including termination.
  3. Evaluate your reasonable accommodation policy and procedure in light of the Cannabis Act.  Employers may need to engage in an interactive process about accommodating an employee’s off-duty use of medical marijuana.  Although the Cannabis Act does not specifically require that employers make accommodations for the use of medical marijuana, Illinois previously enacted the Compassionate Use of Medical Cannabis Pilot Program Act and the Opioid Alternative Pilot Program, both of which allow patients diagnosed with specified medical conditions to possess and use medical marijuana.  In addition, recent rulings in federal and state courts outside of Illinois have found that the use of medical marijuana may be a reasonable accommodation for an employee when the use is outside of working hours and does not adversely affect safety or job performance.
  4. Train supervisors on marijuana-related impairment signs and procedures to follow as a result. The Cannabis Act provides specific symptoms to look for when making a determination that an employee is “impaired” or “under the influence” of marijuana. This training will be very helpful in establishing that an employer had a “good faith belief” that the employee was impaired on the job and therefore that discipline was warranted and lawful.
  5. Establish a written procedure for employees to contest a cannabis-based disciplinary decision. The Cannabis Act requires that employees be given a reasonable opportunity to contest the basis of a disciplinary decision for being impaired or under the influence on the job.  Having a written procedure will help employers establish that employees had a reasonable opportunity to contest a disciplinary decision.

Please contact James Oh and Kathleen Barrett if you would like to discuss assistance in preparing your workplace for the effective date of the Cannabis Act.

As we previously reported, on April 9, 2019, the New York City Council passed Int. 1445-A, which prohibits employers from pre-employment drug testing for marijuana and tetrahydrocannabinols (“THC,” the active ingredient in marijuana). On May 10, 2019, Int. 1445-A became law by operation of the New York City legislative process, which automatically made the bill law after 30 days without action by Mayor de Blasio. The law becomes effective May 10, 2020, giving New York City employers one year to prepare.

Under the law, employers, labor organizations, and employment agencies, and all of their agents, are prohibited from requiring a prospective employee to submit to a marijuana or THC drug test as a condition of employment. This conduct is now characterized as an “unlawful discriminatory practice.” There are, however, several exceptions to the law. For example, the law will not apply to employees in the following roles: safety-related positions, transport-related positions, caregivers, and certain federal contractors. Further, to the extent that a collective bargaining agreement requires drug testing, the law will not apply to such testing. Please see our Act Now Advisory for further details related to these exceptions.

What Employers Should Do Now:

In addition to the steps that we have previously suggested, employers should consider the following actions:

  • Determine whether you are a covered employer, and if so, review and potentially revise your drug-testing requirements to ensure that they will not violate the new prohibition, and be prepared to cease pre-employment drug screening for marijuana and THC.
  • Determine whether any of your employees fall within one of the many carve-outs and exceptions provided under the law and if so how the Company will implement the testing for such individuals.
  • Look out for any rules or regulations published by the City to facilitate and guide implementation of the law.