Got “weed” (marijuana)? Well, as a result of the “Cannabis Regulation and Tax Act” (410 ILCS 705) beginning January 1, 2020, millions of Illinoisans will — legally. This new law will create challenges for fire departments in several different areas. A thorough review of the Act (which is beyond the scope of this brief article) will likely be required by all fire departments across the state before the implementation date.
What would that in-depth review of the “Cannabis Regulation and Tax Act” disclose? Well, here’s some highlights:
1. Recreational use of cannabis will be permitted for those 21 years of age or older, subject to certain licensing requirements and regulations about where and how cannabis can be distributed. So, during their off-duty hours, fire department personnel will be legally free to possess and use the drug. So, also, will others in the State. As a result, when responding to a call for assistance, our personnel will need to remember that those in need of services may be impacted by use of the drug prior to the call for assistance. Personnel may need to alter certain procedures to address this fact.
2. The new law specifically provides that firefighters on duty may not use cannabis. Fire departments will still be able to adopt reasonable “zero tolerance” and drug-free workplace policies. According to 410 ILCS 705/10-50, “Nothing in [the] 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…”. However, it is suggested that any such policies currently in place will need to be reviewed, and perhaps revised, to conform to the requirements of the new law.
3. What happens if a firefighter appears for work, and appears at that point to be impaired as a result of prior cannabis use? The new Act gives some guidance on this issue at 410 ILCS 705/10-50 (d):
(d) An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the 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 property;… or carelessness that results in any injury to the employee or others. If an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.
4. In line with personnel’s ability to use cannabis during off-duty times, the “Right to Privacy in the Workplace Act (820 ILCS 55/5) has been amended to prohibit fire departments from discriminating against a firefighter for using cannabis off-premises and during non-working and non-call hours.
5. Nothing in the new law “… shall be construed to interfere with any federal, State, or local restrictions on employment … or impact … [a fire department’s] ability to comply with federal or State law or cause it to lose a federal or State contract or funding…”. 410 ILCS 705/10-50(g).