Is your business ready for recreational marijuana?
Updated: Nov 19, 2018
According to the Chicago Tribune, governor elect J.B. Pritzker says "legal cannabis could generate an estimated $350 million to $700 million in annual taxes." It was a controversial topic in the 2018 Illinois gubernatorial race, and with Pritzker victorious, the legalization of marijuana for recreational use in Illinois could be just around the corner.
Medicinal marijuana has been legal in Illinois for less than five years now, and with the likelihood of recreational marijuana becoming legal in Illinois in the near future, businesses should be thinking about what their policies say. Regarding use in and around the office, will companies treat it like tobacco? How will companies treat failed drug screenings for marijuana during a worker's compensation claim? Clear, unambiguous rules should be established to avoid unwanted litigation and/or liability.
Marijuana possession and consumption remain illegal federally, and businesses are generally advised to treat marijuana as they would any other controlled substance. It is important to recognize, though, that Illinois statutes prohibit a business from discriminating on the basis that a person possesses a registration card or has obtained "status as a registered qualifying patient or a registered designated caregiver". Despite these protections, employers may still enforce drug-free work zones, and can reprimand offending employees, even if they have a medicinal card.
More states are continuing to legalize marijuana for recreational use (nine so far, and three more as of the midterm ballot initiatives) and a majority of voters continue to favor its broader legalization. Businesses will need to adjust their hiring and testing processes to address the changing landscape.
For example: a business suspects marijuana intoxication is the cause of a work-related accident, and the employee has filed a worker's compensation claim. What evidence gathering procedure is in place to confirm the suspicion? The positive results of a urine test, for example, alone are unlikely to prove intoxication at the time of injury. This may only establish that the individual had been using marijuana in the recent past. A blood test, on the other hand, will definitively establish their toxicity at the time of the accident.
Regarding whether to treat marijuana the same as tobacco if legalized for recreational use, common sense would indicate it should be treated as the business already treats alcohol. Traditionally, a complete prohibition is the least risky option to take. Suggestion: Remind your staff that like alcohol and tobacco, marijuana is legal for recreational use. The company may have no interest in what they do with their personal time, but that the workplace is a drug-free zone and marijuana use at the office is strictly prohibited.
Articles can be found online suggesting the use of marijuana at the office can have a beneficial impact. Personally, the author feels that opening a company up to liability from a suit, by fostering and/or encouraging a culture of intoxication, is likely to backfire long-term despite any perceived benefits from allowing its use.
Make sure your business is prepared to address recreational marijuana legalization by reviewing your policies and procedures today. You cannot discriminate on the basis your employee is a medical user or after it is legalized, but you can keep your office a drug-free work zone.