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Scopelitis L & E News: October 2019

by A. Jack Finklea, James H. Hanson, Sara L. Pettinger, David D. Robinson, Donald J. Vogel

October 7, 2019

Scopelitis Labor & Employment News - October 2019

Employment-related laws challenge motor carriers to better manage their greatest asset - their employees. Striking a balance between employee needs and business demands requires an understanding of both federal and state wage and hour provisions, particularly as they intersect with safety regulations and other provisions governing the transportation industry.

For more information on compliance and developing practical employment provisions, please contact the Scopelitis Labor & Employment Practice.

The Growing Marijuana Trend Increases Employer Uncertainty in Drug Testing and Discipline 

On June 25, 2019, Governor J.B. Pritzker signed into law the Illinois Cannabis Regulation and Tax Act (Cannabis Act), effective January 1, 2020, making Illinois the 33rd state (including D.C.) to legalize marijuana for recreational or medicinal use. Illinois’ action demonstrates a growing trend to legalize some form of marijuana use and certainly highlights the growing conflict between federal and state laws. The trend particularly impacts employers, who are left to determine the extent to which they can continue to test for marijuana use and discipline employees for a positive test.

What You Need to Know

The Department of Transportation (DOT) regulations preempt any state law that is contrary to the federal regulations. Thus, drivers, mechanics, and other employees in “safety-sensitive positions” are still subject to random drug testing. Additionally, pursuant to the DOT regulations, no such person shall report for duty or remain on duty when that person uses any drug or substance identified in 21 CFR 1308.11, which includes marijuana. As such, even with the passage of the Cannabis Act and similar state provisions across the country, a failed random drug test will still support the termination of that employee.

However, as it relates to non-DOT regulated employees, a failed drug test may not be enough to support a termination of employment. For example, under the Cannabis Act, employers may adopt a reasonable zero tolerance or drug-free workplace policy concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call, provided that the policy is applied in a nondiscriminatory manner. While employers can prohibit employees from working while impaired, an employee who is found to have marijuana in their system while working may assert that the presence of the substance resulted from lawfully using marijuana in their free time and not at work. 

Indeed, despite several early decisions confirming employer freedoms to discipline employees even for off-duty marijuana use, developing case law in some jurisdictions with statutes similar to Illinois’ Cannabis Act suggest that a failed drug test, for this reason, may not be sufficient to support a termination. Thus, employers would be best served to have other indicia of impairment to substantiate the need for a drug test and subsequent discipline. 

The Illinois statute provides examples of impairment in the following section:

410 ILCS 705/10-50(d) An employer may consider an employee to be impaired or under the influence of cannabis if 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. If an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.
What to do now?

Employers are urged to have managers undergo training to recognize the signs of impairment. If there is a suspicion that an employee is impaired, document the basis for the suspicion, send the employee for a drug test, and if the results are positive, the documentation of impairment coupled with the drug test results should justify the discipline. Employers should also review their employment policies to confirm their policy on drug and alcohol use complies with the various marijuana testing and discipline provisions of each state in which they operate, adopt a zero-tolerance policy if appropriate, and confirm that employees are given notice (with a signed acknowledgment) of the policy. 

For help making sure your policies and procedures align with this ever-evolving issue, please contact us.


News from Scopelitis is intended as a report to our clients and friends on developments affecting the transportation industry. The published material does not constitute an exhaustive legal study and should not be regarded or relied upon as individual legal advice or opinion.

© Scopelitis, Garvin, Light, Hanson & Feary, P.C. 2019. All rights reserved. 

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