David Morrison, a principal in the firm's Litigation and Labor & Employment groups, is quoted in "3 Ways Attys Are Preparing For Illinois Cannabis Sales," published in the Dec. 20, 2019, issue of Law360.
The article concerns preparations for when the sale of recreational cannabis becomes legal in Illinois on January 1, 2020. This includes attorneys encouraging companies to take a look at their policies now rather than later and to make it clear to employees what will and won't be tolerated.
The legislation as passed allows employers to maintain "reasonable" zero-tolerance policies and drug testing policies as long as they're applied in a consistent and nondiscriminatory way. But a conflicting section of the state's law bans employers from taking any adverse actions against people based on their lawful use of products, including marijuana, on their own time.
In December, Illinois Gov. J.B. Pritzker signed an amendment to the law that states there is no cause of action against an employer for "actions taken pursuant to an employer's reasonable workplace drug policy, including but not limited to subjecting 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."
David Morrison said the amendment attempted to answer an open question for employers worried about liability for drug testing.
Employers can also implement training on how to recognize employees who are impaired, and guide adverse actions not based on testing but on impaired behavior, such as bloodshot eyes, slurred words and missed meetings, he said.
"That's still completely permissible," Morrison said. "A zero tolerance policy is maybe the most straightforward way of addressing it. But I think that's the other way around it.