Work Samples

  • Megann Horstead

Employers weigh liability, funding, recruitment concerns when deciding how to enforce pot policies

As employers grapple with how to handle the impending legalization of marijuana for recreational purposes, speakers at a workshop presented by the Joliet Region Chamber of Commerce & Industry and Joliet Junior College said there is no consensus as to what companies should or shouldn’t do in terms of setting workplace policies and enforcement.

It’s important for employers to be vigilant but also stay compassionate, said Aaron Weiner, director of addiction services for Linden Oaks Behavioral Health, who was one of the presenters at the recent program at JCC.

Weiner took issue with the recreational marijuana law as it’s written and is finding that many employers share similar concerns.

“There’s no control and it’s very non-specific,” he said.

Weiner pointed out that marijuana will remain in a person’s blood system longer than alcohol does. He said while there are standards for levels of alcohol inebriation, there are no equivalent measures for marijuana.

“We really have to get the data before we rush to conclusions,” Weiner said.

Aaron Gelb, a partner with the law firm Conn Maciel Carey LLP, said he believes marijuana use will remain at issue until testing can pinpoint the level of impairment.

Gelb said another issue is if pre-employment drug testing should still be required of job applicants.

Gelb said another issue is if pre-employment drug testing should still be required of job applicants.

“A number of our clients are asking their testing agency to take that off the pre-employment testing panel,” he said. “That’s again another decision you may be making, regardless of the way the law shakes out — at least for certain positions, if it’s not a safety-sensitive position. If it’s impacting your ability to recruit people because the workforce with a potential pool of applicants is going to be disinclined to apply to your company because you are testing, that’s another thing to consider.”

Gelb encouraged employers in the public sector to work with their employees or their bargaining units.

“If you don’t have a drug free workplace policy or you’re going to make significant changes to that policy, this is something you need to bargain over,” he said. “This type of bargaining would be considered a mandatory subject of bargaining. If you don’t bargain with the union before you roll out this type of policy, you will be subject to an unfair labor practice charge.”

Because marijuana remains illegal at the national level, certain organizations could put themselves at risk of losing federal funding if not in compliance with federal laws.

One employer directly affected by the national cannabis prohibition is Joliet Junior College, said Kelly Rohder-Tonelli, the college’s spokeswoman.

“This is certainly a complicated process in terms of trying to integrate federal and state law, and it is important to us to maintain the federal funding we do receive," she said.

Rohder-Tonelli said the college is doing its homework.

“We are looking to our partners in other states where this legislation has already been implemented — Colorado, Michigan, to name a few — to gather information on lessons learned and best practices,” she said.

For now, the college intends to follow existing policies relating to a drug free workplace. That said, they also will try to accommodate users of medicinal marijuana.

“We will encourage potential hires or employees who may need an accommodation to help them perform the essential functions or their perspective or actual roles to notify us of their needs,” Rohder-Tonelli said.

As the college researches the potential effects of the new law on area business practices, Rohder-Tonelli, said JJC will also strive to share that information with the community.

“Any time we can serve as a source of education and awareness on issues impacting the communities we serve, and maximize the partnerships we have in the community to do so, we believe that is a success,” she said.