There was a collective sigh of relief in the room when attorney Julie Proscia told a group of employers and human resource officials the Illinois House and Senate passed Senate Bill 1557, allowing workplaces to keep their zero tolerance policies regarding marijuana.
“Last week, I’d have told you that you need reasonable suspicion,” Proscia said. “Today, I can say that I don’t care if you’re smoking on Saturday. If your policy shows that it’s prohibited, you can discipline up to and including termination.”
Employers will be able to control worker consumption of marijuana products, which is still illegal on the federal level despite being legalized in Illinois starting Jan. 1.
Proscia, who specializes in labor and employment at Smith and Amundsen in Chicago, said that changed a recent presentation in Ottawa and shortened it by about two hours.
“Everything that has freaked out every single employer changed last week,” Proscia said. “Everything that gave people ulcers at the other presentations I’ve done changed. You guys can pretty much keep things the same way as you do them now.”
Proscia said the bill hasn’t been signed by Gov. JB Pritzker but all signs are pointing to him signing the bill. Employers will be able to have a reasonable workplace policy that prohibits their workers from all drugs, including recreational marijuana; however, there is a wrinkle in the law that treats medical marijuana similarly to a prescription. Employees cannot be fired for medical marijuana use.
“We already knew that employers could keep zero tolerance; the only thing in question really was medicinal,” said Barbara Bushey, human resources manager at Sigan America, LLC in Ottawa. “It’s good to hear that we can apply how we handle it using ADA (Americans with Disabilities Act) analysis.”
Proscia said while medical marijuana can be regulated like a prescription, there are fewer protections because it’s still illegal federally. The process for monitoring medical marijuana will instead be more interactive.
However, Proscia said the law is written vaguely enough that the first person fired for marijuana use is going to fight it in court, because employers have to have reasonable suspicion for forcing someone to take a drug test.
OSHA’s regulation has also changed in the last few years; work accidents only require a drug test if there is reasonable suspicion that the accident happened because the person was impaired. Proscia said workplaces have struggled to follow this new rule.
“It’s things like circumstances,” Proscia said. “If I was driving today and I jumped a curb, hit a mailbox and plowed into the bank, it’s like I either had a stroke or I’m impaired. Do they have bloodshot eyes? Do they smell like alcohol or cannabis? That’s how it’s been for awhile.”
Proscia said workplaces no longer have to drug test if someone pulls a hamstring picking up a box or for similar injuries.
Proscia recommended against strict zero tolerance policies that mandate termination the moment somebody fails a drug test.
“I strongly recommend that you don’t include automatic termination,” Proscia said. “The idiot nephew or son of the owner won’t get fired for failing. Or your highest producer will fail and you’ll make an exception. If you put that you’re always going to terminate, then you have to follow through or else it can provide a really plausible discrimination complaint.”
While the presentation was still shorter than the initial one Proscia planned, it still left questions and ambiguity on the table for some of the attendees.
Tracie Steider, H.R. and Training Coordinator at Ottawa Savings Bank, said the changes answer a lot of questions she had previously but they bring up a whole slew of new ones that she’s still trying to make sense of.
“It’s something new we all have to wrap our brains around,” Steider said. “It’s a lot to take in and the law stems off a lot of different items based off of employees and employers. It’s going to be really tricky.”
International Union of Operating Engineers Local 150 is working on how they can work with state and federal law while fulfilling their contractual obligations regarding marijuana legalization but Ed Maher said they value safety above all else.
“As an organization we’re working on this right now,” Maher said. “Safety is paramount. In construction, that’s the most important thing and we’re going forward making sure we’re drug testing to comply with both state and federal laws, which are at odds in some cases.”
Eakas Corporation Human Resources Manager Kay Redshaw said they won’t treat marijuana any differently with legalization, as they want to comply with both federal and state laws as they’re written.
“We’ve revised our drug policy to address this issue and we’ve had supervisor training to address this issue,” Redshaw said. “That won’t change at all.”
Source: The Daily Chronicle
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