Pot Talk: How Employers Are Preparing for Cannabis Legalization

Oct 14, 2019

As recreational marijuana becomes legal on January 1, employers are looking to adapt. 

A panel of experts at OSF’s Jump Trading and Simulation Center told a group of business leaders Monday to begin adjusting their drug policies now, not later.

Unlike alcohol and other drugs, marijuana can remain in a person’s system for weeks after usage. That makes traditional drug tests less helpful for enforcing zero tolerance policies. 

“That’s the problem why we just can’t rule people out with a drug test like we do other drugs, is we just don’t know who’s impaired, what level, all those other things that come up," said Troy Overholt, vice president of OSF Occupational Health. 

But he said any policies must be implemented uniformly across the board. The new law has a non-discrimination clause. 

Peoria County State's Attorney Jodi Hoos warned that zero tolerance policies do not allow discretion for mitigating circumstances. She said employers may want to consider whether or not they continue to apply those policies for cannabis. 

“I think, right now, it looks like many employers are going to pull THC out of their pre-employment panel, but leave it in for for-cause reasonable suspicion," Overholt said. 

He said reasonable suspicion of marijuana impairment can be best established by observing behaviors. 

Hoos said supervisors should make sure to document potential impaired behavior on the job to build a case for termination, rather than relying on drug testing. 

Under the new Illinois law, people are allowed to possess and consume cannabis products on their own time. Employers can still regulate usage and possession in the workplace. 

But the contradiction between federal and state law on cannabis will present big gray area for Illinois employers.

Though marijuana will be legal here on January 1 under state law, the federal government still considers it an Schedule I drug, alongside illegal drugs like heroin, LSD, and ecstasy. That could present a conflict for employers who receive federal money, like nursing homes and healthcare providers. 

“You don’t even have to say zero tolerance because of these reasons or explain it, you can simply say, we get money from the federal government, and I have to comply with their law, which says, it’s illegal," she said.  

Peoria County State's Attorney Jodi Hoos
Credit Tim Shelley / WCBU

Hoos said she expects this conflict to clear up in the next few years, as more states legalize recreational cannabis. She believes this will eventually force the federal government to change its stance.

But in the meantime, Hoos expects court battles over the issue. She said it may also wind up before the U.S. Supreme Court for resolution. 

Hoos recommends regulating cannabis in the workplace much like alcohol. That means while active impairment or possession won't be tolerated, usage on one's own time probably won't be viewed as so problematic. 

She said this transition is similar to when the interstate speed limit was raised from 65 miles per hour to 75 in her native Nebraska.

“That was a huge issue. Everybody was like, “Oh my God, everyone’s going to die on the interstate, why are we going so fast? We don’t need to do that.’ Well, now it’s second nature. Now nobody even gives it a second thought. I think it’s going to be the same here," Hoos said. 

She said she thinks five to 10 years down the road, people will look back and wonder why this was such a big issue. 

From her perspective as state's attorney, Hoos said while the new law means fewer cannabis cases for her office to deal with, but she's also concerned about a potential uptick in DUI cases. She said her office is working with the circuit clerk and sheriff on thousands of expungements.