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With the legalization of recreational marijuana use for adults in Illinois around the corner, local officials are hashing out workplace considerations – including what rules should apply to City of Evanston employees who might legally use the product. Under the Illinois Cannabis Act, adults over the age of 21 will be able to possess up to 30 grams of marijuana, starting Jan. 1, 2020.
Presently, the Act allows the City to adopt “zero tolerance” policies on use of marijuana in the workplace, “provided that the policy is applied in a nondiscriminatory manner,” Interim City Manager Erika Storlie noted in a detailed memo on the subject.
In addition, the Act authorizes the City to discipline or terminate an employee for violating an employer’s employment policies or workplace drug policy, subject to an appeals process, she noted.
At the same time, the Act designates recreational cannabis used in compliance with the Act as a ‘lawful product’ subject to the protections against discrimination provided under the Illinois Right to Privacy in the Workplace Act, Ms. Storlie pointed out, illustrating the complicated nature of the issue.
“This means that a [non-police or fire] employee who lawfully uses cannabis outside of work and is not impaired by or under the influence of cannabis during working hours [while on duty or while on call] should generally not be subject to adverse employment action on that basis alone. …” she wrote.
In discussion at the Dec. 9 City Council meeting, Ninth Ward Alderman Cicely Fleming said she understands the law as it relates to non-use by police and firefighters and, for that matter, “anyone under the influence while working.”
“My concern with this,” she said, “is that we have now approved a tax on recreational marijuana to be deposited into a reparations fund; however, we are still saying with this memo that you [job applicants] cannot work for the City of Evanston if you found [through] a drug test or whatever to be under the influence of marijuana.”
Michelle Masoncup, the City’s Corporation Counsel, confirmed that was the case for applicants.
Starting in February, she said, officials will bring back revisions in the City’s personnel manual on workplace considerations for Council members to consider.
When staff does come back with the proposed changes, Ald. Fleming said she would not support a blanket zero tolerance policy.
“I would support it for a particular position – I would support it [if outlined under federal policies] but I would not support it for City staff overall.”
In addition, she expressed hope that the performance evaluators used in drug tests – “speech and dexterity and agility and things,” be much more fleshed out.
She also requested that staff furnish reports to Council members, detailing the number of employees who might be perceived to be under the influence, and required to take a drug test by their manager or Human Resources.
“I would like to keep very close track on that,” she said.
“Because obviously now this (marijuana use) is legal – just like beer is legal,” she said. The City “doesn’t tell people they can’t work here [if] they drink beer at nighttime,” she said. “I’m very concerned about how we’re going to rule this out, particularly with us taking tax dollars for reparations.”
Alderman Ann Rainey, 8th Ward, asked if there is a way to make a comparison between zero tolerance for alcohol as compared to marijuana.
Ms. Masoncup indicated the rules which apply to the two could be “very similar,” and “I think the policy [for marijuana] will probably mirror our policy for alcohol.”
In her memo to the Council, Ms. Storlie noted that an employer “may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that the employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks.
“The City will need to also conduct training for managers and supervisors on the signs of impairment and, if an employee is referred for any drug test, steps to take if the employee tests positive for cannabis,” she wrote.
Some possible impairment symptoms include “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 proper disruption of a production or process; or carelessness that results in any injury to the employee or others.”
Additionally, “the law prohibits discrimination against employees for use of ‘lawful products’ like cannabis during nonworking and non-call hours,” Ms. Storlie noted.
“An employee is deemed on call when the employee is scheduled with at least 24 hours’ notice by his or her employer to standby,” she explained “or otherwise responsible for performing tasks related to his or her employment either at the employer’s premises or other previously designated location by his or her employer or supervisor to perform a work-related task.”
City staff is expected to respond to questions from the general public on non-Human Resources questions at a meeting scheduled for 7 p.m. on Dec. 17 in the fourth-floor Parasol Room at the Morton Civic Center, 2100 Ridge Ave.
At that meeting, City staff as well as a representative from the Evanston Police Department, plan to present information about the new law and answer questions.
“I think it will benefit the entire community in terms of understanding what it is that is allowed and what it is that is not allowed for persons to do in the community,” Ms. Storlie said at the Dec. 9 meeting. “Can you consume cannabis on your front porch? Can you walk down the street and consume cannabis? Can you carry cannabis, on your person or in your belongings? The answer to many of those questions is ‘Absolutely not.’ So, I think people are surprised to learn that it’s not.”