Cannabis laws are popping up around the country and are impacting the way employers select employees. Take Illinois for example—it is now legal to possess and consume cannabis in Illinois, but employers can still maintain their zero tolerance policies, with certain significant limitations.
Employers may still prohibit employees from using cannabis while they are working, but employers can no longer decline to hire, discharge, or take other adverse action against an applicant or employee merely because the individual tested positive for cannabis.
Employers will also find it much harder to discipline or terminate an employee thought to be “on drugs” while working. The new law allows employers to discipline employees if the employer can demonstrate a good faith belief that the employee exhibited “specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, . . .” An employer will have to fully document the employee’s behavior which led to the decision to terminate the employee.
To make matters even more difficult for employers, the new Illinois law requires employers to allow the employee a reasonable opportunity to contest the basis of the employer’s determination that the employee was impaired while on the job.
Impact on DOT Jobs
While new state laws around the country may create confusion for employers, the Department of Transportation is still adamant that anyone who has a safety sensitive positions, like pilots, school bus drivers, truck drivers and train engineers, may not use cannabis. If these individuals test positive for cannabis, they can be terminated even though cannabis is legal in their home state.
Take Away: Cannabis laws are making more difficult for employers to maintain a drug free workplace. Make sure you know your state’s laws on cannabis before you decide not to hire or to terminate an employee.
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