Yes, we recommend updating your existing drug and alcohol policies to address employees’ recreational use of marijuana (as distinct from employees’ medical use of marijuana) under the new Cannabis Regulation and Tax Act (“Act”), which may begin as soon as January 1, 2020. The Act includes some protections for employers that wish to restrict employees’ possession or use of marijuana at work, but there also are some limitations and other provisions that may necessitate updated policies. Also, you may wish to engage labor and employment counsel to review your updated policies, as there is some ambiguity in the new law, as discussed below.

In general, the Act provides that an employer may ban employees from possessing or using marijuana “in the employer's workplace or while performing the employee’s job duties or while on call.” The Act provides that “[n]othing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.” Additionally, the Act permits employers to discipline or terminate employees who violate workplace drug policies that prohibit using, possessing, or being under the influence or impaired by marijuana in the workplace or “while performing the employee’s job duties or while on call.”

While employers clearly may discipline or terminate employees who are “impaired or under the influence of cannabis,” some legwork is required. An employer must have a good faith belief that the employee “manifests specific, articulable symptoms while working that decrease or lessen the employee's performance of the duties or tasks of the employee's job position.” The Act provides several examples of such symptoms, including symptoms affecting an employee’s speech, physical dexterity, agility, coordination or demeanor, as well as irrational or unusual behavior, negligence or carelessness in operating equipment, involvement in an accident that results in serious damage to property, or carelessness that results in an injury to another employee. An employee must have “a reasonable opportunity to contest the basis of the determination” that the employee was impaired or under the influence of marijuana if that is the basis for discipline.

Additionally, the Act protects employers by stating that it does not create a cause of action when an employee is disciplined or terminated based on the employer’s “good faith belief” that the employee was impaired or under the influence of marijuana — but this implies that such a cause of action may exist if the employer is found to have acted in bad faith.

If your bank conducts drug testing of its employees or applicants, we believe it would be prudent to consult with labor and employment counsel regarding the impact of the Act. Although the Act provides that an employee or applicant does not have a cause of action against an employer for being subjected to a “reasonable” drug test, it is unclear whether an employee or applicant would have a cause of action against a bank that disciplined, terminated, or refused to hire an employee or applicant who legally used marijuana outside of the workplace, not on company time, and did not display any signs of impairment — but did test positive while at work for THC (the chemical responsible for most of marijuana’s psychological effects), which can remain in the system for up to thirty days.

For resources related to our guidance, please see:

• Cannabis Regulation and Tax Act, 410 ILCS 705/10-50(a) (“Nothing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.”)

• Cannabis Regulation and Tax Act, 410 ILCS 705/10-50(b) (“Nothing in this Act shall require an employer to permit an employee to be under the influence of or use cannabis in the employer’s workplace or while performing the employee’s job duties or while on call.”)

• Cannabis Regulation and Tax Act, 410 ILCS 705/10-50(c) (“Nothing in this Act shall limit or prevent an employer from disciplining an employee or terminating employment of an employee for violating an employer’s employment policies or workplace drug policy.”)

• Cannabis Regulation and Tax Act, 410 ILCS 705/10-50(d) (“An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others. If an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.”)

• Cannabis Regulation and Tax Act, 410 ILCS 705/10-50(e) (“Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for:

(1) actions, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing under the employer’s workplace drug policy, including an employee’s refusal to be tested or to cooperate in testing procedures or disciplining or termination of employment, based on the employer’s good faith belief that an employee used 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 employment policies;

(2) 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; or

(3) injury, loss, or liability to a third party if the employer neither knew nor had reason to know that the employee was impaired.”)

• Right to Privacy in the Workplace Act, 820 ILCS 55/5(a) (“Except as otherwise specifically provided by law, including Section 10-50 of the Cannabis Regulation and Tax Act, and except as provided in subsections (b) and (c) of this Section, it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking and non-call hours. As used in this Section, ‘lawful products’ means products that are legal under state law. For purposes of this Section, an employee is deemed on-call when the employee is scheduled with at least 24 hours’ notice by his or her employer to be on standby or otherwise responsible for performing tasks related to his or her employment either at the employer’s premises or other previously designated location by his or her employer or supervisor to perform a work-related task.”)

• Mayo Clinic, Clinical Interpretation of Urine Drug Tests (“Detection of marijuana can occur in the urine for greater than 30 days after cessation among chronic users, whereas single exposure to marijuana in nonusers typically can be detected in the urine only up to 72 hours. . . . With respect to driving under the influence, most states rely on blood levels to determine impairment. However, blood concentrations can rapidly decline within the first hour because of rapid distribution into fat stores and first-pass hepatic metabolism. In addition, Bergamaschi et al found detectable THC concentrations in the blood after 30 days in 5 patients.”)