Can You Roll After Work?

Stephen Andrews
07 Mar 2022

Drug testing and cannabis use at work are gaining momentum as more states move to end criminalization. A recent decision by Amazon to end drug testing for cannabis is set to go retroactive. With this, former workers and applicants at the country's second-largest employer who have returned a positive THC test will be allowed to reapply for their positions. Policy change is also expanding within states that regulate legal markets. Just last week, Illinois state's House of Representatives approved a bill that aims to protect adult users of cannabis during their time off-duty. The bill introduced by Illinois lawmakers may not be perfect but could give us a glimpse into how a wider approach to workplace protection legislation from states may look like in the near future.

A bill that is due to be reviewed and passed by Illinois state's Senate would prohibit most employers from terminating contracts or discriminating against job candidates who test positive for marijuana use. With some exceptions. 

Illinois became the first state in 2019 to legalize marijuana and launch a retail system for adults through an act of the legislature rather than a voter initiative. Retail of recreational cannabis products added over $1bn to Illinois state coffers last year. Now, the country's lawmakers are brushing up regulations to offer protections to employed people outside work hours.  

"If we're going to legalize the substance, you should talk about individual liberties and what people want to do on their weekends," the bill's sponsor, Rep. Bob Morgan, told local NBC affiliate WGEM before the vote. "We should allow people to make good choices and not be discriminated against in the workplace because of those choices as long as it's not affecting the workplace."

Jobs where workers appear to operate heavy machinery or aircraft, carry a weapon, are assigned to emergency services, or need to perform other safety-sensitive tasks, are exceptions from Morgan's workplace protection legislation. Companies also retain the right to fire employees for being impaired by cannabis while at work. The House voted 61 in favor vs. 41 against on Thursday (March 3) to pass an amended version of Morgan's Bill HB 4116

The amended measure would protect workers who use legal cannabis products outside job premises during nonworking hours and when the employee is not on call. The protection does not encompass workers at entities that are contractors of the federal Department of Transportation. Neither does the bill add any additional protections under the state's workers' compensation law. 

Local commentators in Illinois believe that the newly proposed bill would mostly protect workers who return a positive test showing a relatively low level of intoxication. The bill's exceptions say that employers can still terminate contracts with workers whose test results meet or exceed the legal limits outlined in the state's vehicle code, which is meant to prohibit impaired driving

In the Prairie State, drivers are considered impaired if they test positive for THC at a concentration greater than 5 nanograms per milliliter of blood or 10ng/mL of other bodily fluids such as saliva or urine—within two hours of driving. Some critics consider those limits too low since THC levels can remain high in the bloodstream for days or weeks after impairment is evident. 

Workers facing a similar limit could face losing their jobs even for use of cannabis outside work hours, such as a worker who smokes a joint the night before work and then arrives at work the next day, even when there is no sign that the worker is impaired.

The Illinois Manufacturers Association (IMA), which represents a collective of large employers within state borders, has remained somewhat neutral on the bill. 

"We don't believe that the bill is perfect. I think we are going to continue to work on the safety-sensitive position in the Senate. But, to that point, Rep. Morgan has been working with the business community tirelessly. I believe all of the amendments he has made up to this point have been done at the request of the business community," an IMA spokesperson said. 

In recent days, workplace legislation protections have moved forward also in other jurisdictions. A Washington, D.C. Council has unanimously approved a bill to ban most workplaces from subjecting job applicants to pre-employment marijuana testing. The legislation would expand on previous legislation D.C. Council approved to protect local government employees against workplace discrimination due to their use of medical cannabis. 

Bans on pre-employment screening have been enacted in other places such as New York, where the state Department of Labor announced end of last year that employers are no longer allowed to drug test most workers for marijuana. (See more on New York's marijuana guide for the workplace here).

There is progress in the higher instances of power as well. Senate and House lawmakers are increasingly using language in recent appropriations reports urging a review of employment policies for federal agencies concerning personal use of cannabis. 

A recent memo from the White House Office of Personnel Management (OPM) suggests that past marijuana use should not disqualify people from employment within federal agencies.

So, I guess, if you are not dependent on all these workplace protections, that's all the better for you! In case you are, dabbing and vaping high THC extracts will probably not do you a favor if testing is coming. Lighting up a regular should be just fine. Until the weekend.

Stephen Andrews