In January 2020, Illinois legalized the use of recreational marijuana through the Cannabis Regulation and Tax Act (“the Act”).  Two months later, many employees began working remotely because of the pandemic.  Today, work-from-home continues to blur the lines between “work” and “home” in countless ways, and employee drug policies are no exception.  The new world of remote work has left many employers wondering what to do with their drug policies now that cannabis is legal and their employees are remote or hybrid.  Can an employer lawfully prevent their employees from using cannabis while working from home?

Case law has yet to answer this question, but the Cannabis Regulation and Tax Act provides some direction.  According to the Act, employers can still apply zero tolerance and drug free policies to all legal use of cannabis, thereby forbidding employees from consuming any form of cannabis “in the workplace.”  See 410 ILCS 705/10-50(a) (“Nothing in this Act shall prohibit an employer from adopting reasonable zero tolerance or drug free workplace policies, or employment policies 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”) (emphasis added).

What counts as “the workplace,” when many employees are conducting company business from their living rooms?  The answer may largely depend on the company’s employment manual and/or drug policy.  Employers who wish to regulate their employees’ use of cannabis on the clock should consider adopting one of the following approaches.

  1. Define “Workplace” to Include Remote Offices

According to the Act, the “workplace” encompasses the “employer’s premises, including any building, real property, and parking area under the control of the employer or area used by an employee while in the performance of the employee’s job duties, and vehicles, whether leased, rented, or owned.”  410 ILCS 705/10-50(h).  The Act also notes that the workplace “…may be further defined by the employer’s written employment policy, provided that the policy is consistent with this Section.”  Id.

This definition mainly describes the “workplace” as the employer’s physical office space.  However, the statute concedes that the “workplace” could be any “area used by an employee while in the performance of their job duties.”  Id.  If an employee works from a private living room, does that living room then count as an “area used by an employee while in the performance of the employer’s job duties?”  Perhaps, though an employer who attempts to regulate an employee’s private space in this way may encounter a slew of employee privacy issues.

To add yet another layer, the Act states that “the workplace” may be further defined by a written employment policy, as long as the policy is compliant with the rest of the section.  Id.  This provision theoretically allows employers to draft employee manuals in a way that puts their workforce on notice that remote offices are considered “workplaces” as far as cannabis use is concerned.  This type of upfront warning would eliminate surprises and set reasonable expectations for privacy in remote offices.  However, this carve out would not allow an employer to forbid cannabis use in an employee’s remote office carte blanche.  Employees still have a statutory right to use cannabis during non-work, non-call hours.  820 ILCS 55/5(a).

  1. Regulate by Time, Not Place

In addition, employers could approach this issue by drafting their employee drug policies to regulate cannabis use by time instead of place.  For example, an employer is entitled to prevent the use of cannabis – and impairment from cannabis – while an employee is “performing [their] job duties” or while “on call,” regardless of whether or not the use takes place on the employer’s premises.  410 ILCS 705/10-50(e)(2)-(3).  Therefore, employers could forbid cannabis use anytime an employee is “performing their job duties” or “on call,” regardless of location.

However, this formula fits some forms of remote employment better than others.  For example, it is fairly easy to determine when many remote, non-exempt employees are “performing their job duties,” because their hours are typically pre-determined and fairly consistent.  However, this is not true of many other exempt employees, whose employers may call them on an unexpected weekday evening and ask for immediate assistance without any advance “on-call” designation.  In this type of scenario, could an employer discipline an employee for being under the influence of cannabis at 8:00 pm on a Thursday if they unexpectedly need the employee to “perform their job duties?”

Case law has yet to answer this question, but a well-drafted employment manual may provide some clarity and potentially head off litigation.  For example, a manual could designate that the “workplace” for the purpose of employee drug policies includes all physical and remote work locations during certain designated hours – which could exceed the typical “9 to 5” – thereby setting expectations for all parties for when employees should be substance-free and ready for work.  However, this working hours designation couldn’t be without limit.  Employers have the right to limit employees’ consumption of legal substances during working hours, but not during their personal time.

Enforcement

Enforcement is the final piece of the cannabis and work-from-home puzzle.  Under the Act, an employer is allowed to discipline an employee for cannabis use if the employer is able to demonstrate a good-faith belief that an employee is manifesting specific, articulable symptoms of cannabis impairment while working that “decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.”  410 ILCS 705/10-50(d).  Short of an employee displaying slurred or slowed speech, or unusual behavior on a Zoom call, how would an employer make this showing?  Testing is not always a reliable tool, as cannabis can stay in a person’s system for days or weeks.  A positive test might simply reflect legal cannabis use outside of working hours from days before.

On the one hand, a lax employer approach could mean cannabis use goes undetected and employee performance could suffer.  On the other hand, an employer may try to use an aggressive surveillance and enforcement strategy that stops cannabis use but infringes on employees’ privacy.  A well-drafted employee drug policy can strike the right balance between these two extremes.

How Sheppard Mullin Can Help

As the legal landscape around employment laws, substance use, and remote work continues to evolve, our team is up-to-date on best practices for maintaining compliance.  For specific questions and guidance on any of these issues, including how to create or update your employee drug policy, please contact our team.  For a comprehensive guide on all ways the Cannabis Regulation and Tax Act could affect your business, please see “Illinois Cannabis Law” a forthcoming book by Sheppard Mullin partners Bradley Graveline and Rebecca Mackin.

This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic.

Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace.  Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal which now aggregates the firm’s various COVID-19 blog posts on a broad range of topics.

*Hope Harriman is a summer associate in the firm’s Chicago office.

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