Picture this: your child’s elementary school teacher, your doctor, maybe your tax accountant — smoking a joint.
It’s something that may be hard to imagine, maybe it even makes you cringe. But that could change as weed becomes more common across Illinois. And we’ve gotten several questions from people who want to know: can I get fired for partaking? (You can submit your question about legal weed here.)
That was on the mind of one reader, Meagan, who did not want us to use her last name when she asked: “If people were to use weed recreationally outside of their normal working hours, could they still be fired if they are randomly drug tested?”
The short answer to Meagan’s question is yes. Employers have the right, under Illinois’ new marijuana law, to fire an employee for failing a drug test. But consumers and employers need to know: it could get complicated.
Here’s a breakdown of things to consider when deciding whether to light up legally.
The short answer: Yes
Illinois’ new law was written to give employers the right to fire employees for using marijuana. Lawmakers wanted employers to know: we’re protecting your right to run your business the way you need to, according to State Rep. Bob Morgan, D-Deerfield, who helped draft the legislation.
Employers have the right to fire people for being impaired, by any substance, at work. They can use drug tests or alcohol breathalyzers to determine whether someone is under the influence. But drug tests don’t work the same as breathalyzers, which can tell you whether someone is drunk in the moment. Drug tests don’t show whether someone is currently impaired, but whether they’ve used drugs in the past — anywhere from a day to a month, depending on the person and the drug.
That’s where it gets tricky. The law prohibits employers from discriminating against people for using marijuana on their own time, but it allows employers to enforce zero tolerance or drug-free workplace policies, which could include requiring people to pass a drug test — scheduled or random.
Part of the reason employers get this right is because weed is still illegal at the federal level. Federally funded or safety-sensitive positions — like truck drivers, pilots and railroad engineers — require drug-testing.
“So anybody that is consuming cannabis [on their own time] and works at an employer that continues to drug test … can be tested and be terminated for that,” Morgan said.
If this seems contradictory to you, you’re not wrong. Let’s get into the long answer.
The long answer: this will likely play out in court
Similar laws are being challenged in other states where weed is legal and there’s not a clear pattern on how those cases are playing out.
“States are not interpreting the statutes consistently,” said Kathleen Barrett, an associate attorney representing Illinois employers for Epstein Becker Green. “At first you started off with a lot of employer-friendly decisions but then you see a transition to more employee-friendly decisions.”
This can be seen in cases involving medical marijuana patients elsewhere in the country.
The Colorado Supreme Court ruled in 2015 that Dish Network was allowed to fire a man who used medical marijuana at home because the drug is still illegal under federal law.
But earlier this year, a court in Arizona sided with a medical marijuana patient who said she was discriminated against after Walmart fired her for testing positive for cannabis after an accident at work, according to the National Law Review.
Under Illinois law, employers are allowed to fire people who test positive for marijuana, even if they are a medical card holder, Morgan said.
A coming cultural shift?
For now, the decision on how to interpret this law, and whether to fire or hire based on a drug test, rests largely with employers.
Some employers are turning a blind eye to marijuana use, said Andy Challenger, vice president of recruitment firm Challenger, Gray & Christmas.
“Nationwide we’ve seen a lot of organizations do away with testing for marijuana,” Challenger said. “They may maintain testing for other drugs in their workplace but removed marijuana from that testing panel.”
There’s at least some data to back that up, according to (the aptly-named) Dr. Barry Sample, a senior director at Quest Diagnostics, a company that conducts more than 10 million workforce drug tests annually.
Sample leads the team that analyzes those tests. He said from 2015 to 2018, the number of drug tests performed that included marijuana dropped across the country, but most prominently in states where recreational weed is legal.
When in doubt, talk about it
But the best answer to Meagan’s question is: Ask your employer! Submit an anonymous question if you have to but make sure to understand your workplace drug policy.
And advice to employers from the experts? Review and update your policies now rather than later, and have an open dialogue with your employees.
“Tell employees what your policy is, what your philosophy is and generally what the rules are,” said Chicago employment attorney Jimmy Oh. “I think there are many an employee who … have questions but they’re afraid to ask them because they don’t want their employer to think they’re a stoner.”
Mariah Woelfel is a producer at WBEZ. You can follow her on Twitter at @MariahWoelfel.
About our questioner: Meagan is a 29-year-old high school teacher in the suburbs of Chicago.