An Employer’s Guide to Illinois Cannabis Regulation — A workable (and legitimate) definition of “impairment”

The Illinois Cannabis Regulation and Tax Act (“Cannabis Act”) protects an employer who acts reasonably based on a “good faith belief” than an employee was “impaired by or under the influence of cannabis”.

This makes it important to define and explain “impairment” and being “under the influence”.

The Cannabis Act itself provides some help, requiring that the employer be able to demonstrate:

  1. Specific, articulable (describable) symptoms;
  2. While working (or on call);
  3. That decrease or lessen;
  4. The employee’s performance of the duties or tasks;
  5. Of the employee’s job position.

Each of these components must be present in order to trigger the protection of the statute.

The Cannabis Act specifically addresses the meaning of “symptoms”, indicating that they include symptoms relating to the employee’s : 1) speech; 2) physical dexterity; 3) agility; 4) coordination; 5) demeanor; 6) irrational or unusual behavior; 7) negligence or carelessness in operating equipment or machinery; 8) disregard for the safety of the employee or others; 9) involvement in any accident that results in serious damage to equipment or property; 10) disruption of a production or manufacturing process;and 11) carelessness that results in any injury to the employee or to others.

This laundry list describes potential symptoms of impairment/being under the influence.

These symptoms do not provide definitive proof.

For that, the employer probably needs a positive test result — which means that “impairment” may really mean “demonstrating one or more of the symptoms of being impaired by cannabis and testing positive for the presence of cannabis in the employee’s system at the time the symptom is demonstrated”. While it may be possible to act without the confirmation of a positive test result, it is risky to do so because the law also provides that the employee must be given “a reasonable opportunity to contest the basis of the determination”.

What’s an employer to do?

Adopt a policy or modify an existing policy to track the requirements of the statute with regards to symptoms of impairment. When necessary, negotiate the changes with any applicable labor organization;

Provide supervisor training in recognizing, corroborating and documenting the existence of the symptoms of impairment;

Create a system of documentation/checklists that makes it easy and effective to do so;

Preserve any objective evidence of impairment that exists.

This article is the second in a 5-part series on “An Employer’s Guide to Illinois Cannabis Regulation”.

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