Recreational pot is legal in Illinois, but employers are still allowed to fire workers who bring cannabis to the office, show up impaired or fail random drug tests. Companies also are able to reject job applicants who don’t pass drug screens. Many employers are not planning changes to how they handle drug and alcohol use, despite the new law. However, employers that take action against their workers still could face questions, such as whether their policies are reasonable or whether employees were actually impaired, which can be difficult to prove given that there is no way to test for impairment. Julie Stahr, a partner in labor and employment law at Schiff Hardin in Chicago, says that “if an employer decides to withdraw an offer of employment or terminate someone based solely on a positive marijuana test, without any additional signs of impairment, I think that leaves room for a question about whether they’re taking action based on someone’s lawful use of marijuana while they’re (off) duty.” Attorney Stephanie Dodge Gournis advises employers to have clear policies in effect and apply them consistently and in a non-discriminatory way. She also says that employers will need to consider whether testing could leave them short-staffed.
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