CHICAGO — The prospect of marijuana legalization might inspire visions of weed-smoking breaks at work, or grabbing a joint with co-workers after a hectic day at the office.
But the reality of legalization in Illinois will likely be much hazier. Some employers might start turning a blind eye to employee use — as long as workers can still do their jobs — a trend that’s already happening in some other states where it’s legal. Other employers, however, might still ban its use, taking action against employees who test positive for pot, bolstered by federal law under which marijuana is still illegal, experts say.
What is clear is that employers will be faced with questions that, a generation ago, would have been unthinkable.
“Every employer is going to have to consider how they want to deal with this in their workplace,” said Bryna Dahlin, a Chicago cannabis attorney.
Consider Chicago-based Relativity, a legal technology company with more than 850 employees globally. It already forgoes drug testing for prospective employees and doesn’t see that changing if recreational marijuana is legalized, said Matt Garvey, Relativity’s director of talent acquisition, in a statement.
“We don’t do drug screenings for two main reasons,” he said. “First, the jobs within our organization do not require a pre-employment drug test and second we trust that our team members will make the appropriate decisions in order to be a productive member of our teams while adhering to local laws.”
This week the Illinois General Assembly passed a bill to legalize the recreational use of marijuana and Gov. J.B. Pritzker has promised to sign the legislation, which would take effect Jan. 1.
Medical marijuana is already legal in Illinois. Once recreational marijuana is legalized, more people in Illinois will presumably use it. That’s what happened in Colorado, which legalized marijuana in 2014. About 15.5% of Colorado adults used marijuana at least once in a 30-day period in 2017, up from 13.6% in 2014, according to the Colorado Department of Public Health & Environment.
And that means employers will face a new set of questions.
Should they ban possession in the workplace? Should they fire employees who test positive for marijuana? Should they continue testing current and prospective workers at all?
If rules surrounding medical marijuana are any indication, Illinois employees won’t necessarily be free to get stoned, even in their free time, once recreational marijuana becomes legal.
Illinois law bars employers from discriminating against employees for using legal products outside the workplace. But employers still have the right to have drug-free workplace policies, require drug testing and to take action against employees who violate those policies, said Stephanie Dodge Gournis, a partner at Drinker Biddle & Reath who works in Chicago.
Part of the reason for that is because marijuana is still illegal under federal law — and it will likely remain that way under the current presidential administration.
“Really, until cannabis becomes declassified as a Schedule I drug, by in large, employers will still have the right to enforce their policies and take disciplinary action in the workplace,” Gournis said.
Though courts in some states have sided with employees on the issue, courts in other states have sided with employers that have taken action against marijuana users, even when those workers were using it medicinally and legally.
In 2015, the Colorado Supreme Court ruled that Dish Network was legally allowed to terminate a quadriplegic man who used medical marijuana at home, because the drug was still illegal under federal law.
A federal appeals court in Michigan sided with Walmart in 2012 after the company fired an employee with cancer who had a medical marijuana card because he had a positive drug test.
Also, any company or organization that contracts with the federal government would also still likely have to bar marijuana use among employees. And transportation workers in safety-sensitive positions would also still likely be subject to drug and alcohol testing, per federal requirements.
“As federal contractors we must comply with the Drug-Free Workplace Act of 1988,” said Julie Pesch, a spokeswoman for Lurie Children’s Hospital. “Also, because we have to deal with safety of patients and others, we have a drug-free work environment.”
That’s not to say, however, that some other companies — where workers wield Sharpies rather than scalpels — might not take a mellower approach.
It’s possible that once weed becomes legal in Illinois, more companies might stop testing for marijuana use. Some companies have already made that change following the legalization of medicinal marijuana in Illinois, the widespread use of CBD oil and potential legalization of recreational marijuana, said Dr. David Fletcher, founder of SafeWorks Illinois in Champaign, which does drug testing for employers.
“We’ve actually had some employers say they don’t want to test for it,” Fletcher said. “That’s kind of the new trend.”
Many private companies in Colorado don’t test for drugs and most Colorado restaurants have stopped drug testing entirely, said Markie Davis, director of employee benefits and risk management for the state of Colorado, at a recent Chicago program for employers about marijuana legalization.
Employers in California, where voters chose to legalize recreational marijuana in 2016, have also started to wonder if they should stop testing for the drug, said Michelle Lee Flores, a Los Angeles-based partner with law firm Akerman.
“What I’ve been finding is there’s been a lot of serious consideration of what to do and whether or not to drop THC from the standard drug panel,” Flores said, referring to the main psychoactive chemical in marijuana.
Still, if other states are any indication, testing workers for marijuana use isn’t likely to go away, even with a change to the law.
For example, in Colorado, about 96% of employers who used the drug testing company Quest Diagnostics in 2017 still included marijuana in their employee drug testing, said Dr. Barry Sample, senior director of science and technology for Quest’s employers solutions business. In Nevada, where recreational cannabis use is also legal, that number was 91% in 2017.
“Marijuana still has negative impacts on performance,” Sample said. “It’s not perhaps as benign as some people may believe.”
Even with drug testing, however, some employers might choose to ignore positive results. Otherwise, some businesses might not be able to find enough workers.
Some employers might even want to advertise their lack of marijuana testing as a sort-of perk to help attract workers, said Gournis.
“Eventually, it may become more of an employee relations or recruiting issue, particularly for industries that rely on … temporary workers, or workplaces that do most of their recruiting from younger generations,” Gournis said.
Whatever tack companies take, it’s important they set those choices out in policies, should the law change, said Dr. Jonathan Baktari, CEO of U.S. Drug Test Centers. Some companies’ policies about marijuana and other drugs were written 10 or 15 years ago and are now out of date.
Employers that don’t address changes in the law are the ones that can face problems down the road, he said.
“You can’t just ignore these new laws that are being passed,” Baktari said. “That’s just a recipe for disaster.”