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Employers learn about legal implications of new cannabis law

MARION — Employers are confused about the new Illinois law legalizing the recreational use of marijuana for adults age 21 and older with good reason, according to Carbondale Attorney Shari Rhode.

“A portion of the law makes sure there are no consequences for recreational use outside of the workplace,” Rhode said Wednesday afternoon after speaking to employers at a conference sponsored by SIH Work Care.

Rhode added that the law goes into detail about rules for selling and growing marijuana, but does not define what constitutes “being under the influence.”

Another issue is that the federal law does not allow use of marijuana.

“Employers still can take action based on good faith belief that an employee is under the influence in the workplace,” Rhode said.

She said employers will have to document behavior, such as changes in speech or gait or not being able to perform job duties when there is an issue. Employees also will have the right to respond and explain the behavior.

“If they take an adverse action, it should be related to performance in the workplace,” Rhode said.

Rhode said there is a set level of blood alcohol that is considered above the legal limit. Not only is there no guideline for marijuana levels, the current test measures the presence of the drug and not the level of the drug in the bloodstream. That test does not yet exist.

The law does end pre-employment and random screening for marijuana. Pre-employment and random drug screening can be performed without testing for marijuana.

For employers, the issue boils down to safety of their employees and customers or clients.

Debbie Isaacs, human resources director at the JR Center in Anna, still has a lot of questions. The JR Center works with individuals with developmental disabilities, so safety is important.

“We want to make sure our staff is giving them 100 percent of their attention. We don’t want them to work impaired,” Isaacs said.

She the conference gave her more confidence to deal with problems.

David Hays, president and general manager of Kokopelli Golf Club, also has questions about the new law.

“The most interesting part is there is so much still to be decided. For me, I have people who might possibly, if under the influence, be more prone to accidents,” Hays said.

That includes kitchen staff who use sharp knives and equipment like slicers, as well as golf staff who operate heavy equipment.

Hays, who also runs Mary’s Restaurant in Herrin, employees 35 at Kokopelli and 15 to 18 at Mary’s.

“I’ve got a good crew, and I’ve really not had any issues,” Hays said.

He does not require pre-employment drug testing or random screening, but he is concerned about what he can do in the case of an accident. Currently, if an employee appears to be impaired from alcohol, he or she is sent home. He expects cannabis policy to be very similar.

“So many questions, and I am so uneducated about it. I have so much to learn, but as an employer, I have to learn it,” Hays said.

Verlinda Henshaw, executive director for rehabilitation, occupational medicine and urgent care at SIH, was one of the organizers of the event. She said there is a lot of concerns about the new law and expects those to continue for a while.

“You have to have reasonable suspicion to test, but you still can test for illegal substances,” Henshaw said.

She added that technology needs to evolve as more states legalize recreational use. One problem with the current test is there is no way to determine when use occurred.

She, like Rhode, believes the court will ultimately decide what employers can and cannot do.

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