Legalized marijuana and the workplace
Americans' views on marijuana have shifted over the last 30 years, with over 85 percent of people supporting legalization. This is in large part do to the increased perception of the relative health benefits, which have been widely reported in mainstream media. It is hard to argue the point when your grandmother is using it to ease her chronic pain. Although it is believed there may be therapeutic benefits for a wide variety of conditions, experts do agree that there has not been enough strong clinical research done in this area. Legalization and decriminalization have been hot topics in the business world as well. Over the last two years, I have been getting a lot of calls from AMITA Health corporate clients asking for resources to navigate the changing marijuana laws. In response, we have hosted a variety of education programs to address those concerns. The following are some takeaways from our client education seminars.
With the new governor signing the Cannabis Regulation and Tax Act, which will allow adults 21 and older in Illinois to possess and consume cannabis, large and small employers are unpacking the guidance in the 600-page document to determine the impacts on workplace policy.
There are a couple of salient points to consider. For employers it is critical to remember:
• Marijuana is still illegal under the federal Controlled Substances Act (CSA) as a Schedule I substance.
• The American's with Disabilities Act (ADA) has a specific carve out exempting drugs that are illegal under federal law from its protections. Since marijuana is a Schedule I drug under the CSA, the ADA does not protect medical marijuana users
• The Illinois Act expressly permits employers to adopt and enforce "reasonable" and nondiscriminatory zero tolerance and drug free workplace policies, including policies on drug testing, smoking, consumption, storage, and use of cannabis in the workplace or while on-call.
What is changing, and has employers concerned and sometimes confused, is the new act also amends the Illinois Right to Privacy in the Workplace Act, which prohibits employers from restricting employees from using legal products outside of work. In short, the employer must treat recreational and medical marijuana use as it does alcohol and tobacco.
Used versus impaired
So how will this impact a business and how it approaches policy? Illinois statute prohibits discrimination against employees for testing positive for marijuana. The upshot is employers cannot rescind a job offer or terminate an employee for a positive drug test. How will this impact employers that want to hire or fire at will? For employers, a key issue involving marijuana is not legalization, but workplace safety. The takeaway is that it is more important than ever to make the distinction between an employee having used marijuana versus the employee being impaired on the job. Having come from an Employee Assistance Program (EAP) background, I think the most progressive companies have addressed this very issue and developed Drug Free Work Place and Safety Program policies to include training for supervisors to observe and document employees that have unsafe practices or exhibit behaviors and signs of drug use.
So where do we go from here?
Executives are questioning if they should continue testing for marijuana. If Colorado is the test case, legalizing marijuana has had little effect on testing. 96 percent of companies that had been testing with Quest Diagnostics are still testing. For companies involved in government contracts, or safety sensitive transportation or safety sensitive positions testing is still required.
The Cannabis Regulation and Tax Act goes into effect Jan. 1, 2020, so I would recommend that employers:
• Read and become educated about the law
• Consult with your legal counsel
• Maintain Your Drugfree Workplace and Safety policies, but review and update
• Update your employee handbook with simple, clear language about the policy
• Communicate to existing employees and new hires what the policy is,
At the end of the day, building a culture of safety in your company should the focus of worker education, training and practice.
•Marcy Traxler is the Vice President of Business Development and Service Line Strategy for AMITA Health, headquartered in Lisle, She has over 25 years of experience in the Chicago healthcare market and has been part of both the occupational health and employee assistance programs at AMITA Health.