Effective January 1, 2020, use of cannabis for recreational purposes will become lawful in Illinois. That's the general rule. And it's understandably causing concern for employers throughout the state, because there is a slew of exceptions to that general rule. For example, under the new law, which is called the Illinois Cannabis Regulation and Tax Act (the Act):

• An employer may prohibit the use of cannabis in the "workplace" (which includes property, buildings, vehicles owned or leased by the employer, and parking lots under the employer's control or used in the performance of an employee's job duties).
• An employer may prohibit the storage of cannabis in the workplace.
• An employer may subject employees and job candidates to reasonable drug testing.
• An employer may prohibit employees from being under the influence of or impaired by cannabis in the workplace, while performing their job duties, or while on call.
• An employer may adopt a policy providing for discipline of an employee if the employer has a good faith belief that the employee used or possessed cannabis in the workplace, while performing the employee's job duties, or while on call.
• The Act does not impact an employer's obligation to comply with other laws, such as Department of Transportation regulations governing drivers who hold a Commercial Driver's License, nor does the Act require any employer to sacrifice its federal or state government contracts or funding.

The Act contains specific guidance regarding the circumstances an employer may consider in determining that an employee is impaired or under the influence of cannabis:

"... the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee's performance of the duties or tasks of the employee's job position, including symptoms of the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others."

That's all good news. The not so good news is that even when an employer has evidence of any (or all!) of the circumstances listed above and, therefore, wants to discipline the employee, the Act requires the employer to "afford the employee a reasonable opportunity to contest the basis of the determination."

This begs the question: Won't an employee always contend that he or she used cannabis days (or weeks) ago and that such use was neither in the workplace nor during working time and that the use of the drug has nothing to do with any issues the employer claims to see? This seems like a convenient excuse, particularly because there is presently no test that can determine how recently an individual has used cannabis or how high an individual is. But does that excuse the behavior?

Said another way, how does an employer resolve the tension between respecting an employee's right to use a lawful substance and prohibiting its use because it may diminish productivity, impede operations, and cause careless mistakes? For employers in industries with safety-sensitive positions (such as drivers or employees operating heavy machinery or equipment), the answer seems simple. After all, the risk of a claim for wrongful termination seems trivial in comparison to the potential liability – and devastating publicity – in the event that an employee's known use of cannabis results in property damage, personal injury, or fatalities.

For employers in other industries, such as professional services, technology, and marketing, perhaps the best approach is to focus on the employee's behavior itself and not the cause of that behavior. If the employee is not competently performing the duties of the job, or lacks the physical dexterity, agility, coordination, or demeanor to competently perform the job, or engages in irrational or unusual behavior, or displays negligence or carelessness in the performance of the job, or disregards the employee's own safety or the safety of others, does the reason really matter? Even if use of cannabis is suspected, why not simply treat the employee the same as any other employee who is underperforming or violating disciplinary rules?

The bottom line is that an employee's failure or inability to competently perform the duties of the job, or to comply with company policies or safety rules, is unacceptable, regardless of whether that failure or inability is caused by the use of cannabis.