The Elephant Is In the Room and Her Name Is Mary Jane
Friday, December 20, 2019
“They took my whole paycheck and I know why (why man) / Yeah hey cause I got high/ Because I got high/ Because I got high”
- Afroman, Because I Got High. T-Bones Records, 2000.
Since June 25, 2019, the date that Governor J.B. Pritzker of Illinois signed into law the Illinois Cannabis Regulation and Tax Act, I have been conducting a decidedly unscientific and informal survey of whether employers have said anything about the impending legalization of marijuana for recreational use in Illinois. The Illinois Cannabis Act becomes effective January 1, 2020 and allows adults 21 or older to possess up to 30 grams of marijuana flower and five grams of marijuana concentrate for personal consumption. The Act also contains explicit “protections” for employers, including that they may continue to have “reasonable drug free workplace policies” and that they may discipline an employee if they have a “good faith belief” that the employee was impaired at work.
None of the people I have asked has said that their employer has addressed how they will handle the issue of cannabis in the workplace. Come 2020, when recreational marijuana becomes legal in Illinois (medicinal marijuana has been legal since 2013 in the Land of Lincoln), it is reasonable to expect that more of an employer’s Illinois workforce will at least try marijuana. Law-abiding citizens who were afraid to try weed before because it was illegal will feel more emboldened to try it once it becomes legal. Most employees will have the common sense not to be stoned at work, just like they know they cannot be drunk at work. But employees may wonder if, instead of a glass of wine at lunch, can they take just one hit of hooch at lunch, or a bite of an edible, not because they want to get high, but because it was a stressful morning and they think (or know) that marijuana will calm the nerves.
There’s an elephant in the room, and her name is Mary Jane, or weed, or pot, or ganja, or reefer – whatever you want to call it. As of the writing of this article, Illinois employers will be four and a half months away from legalization in Illinois. As we get closer and closer to the effective date of the Illinois Cannabis Act, the pressure will build to say something. Employees will be wondering how their boss will deal with suspected marijuana use in the workplace. They may not say so out loud because they don’t want to be thought a stoner (think Cheech & Chong).
Regardless, should you address the elephant in the room? I say yes and recommend that companies with Illinois employees publicly announce to everyone at the company, even those employees of the company who don’t work in Illinois (some may travel to Illinois for a meeting), what company policy is on marijuana in the workplace
First, while the old legal maxim says that possession is nine-tenths of the law, in the employment law space, notice is nine-tenths of the law. If an employer provides notice to its workforce of what company policy or procedure (whether formal or informal) is, that employer is in a much more defensible position when the employer takes disciplinary action for violation of company policy or procedure than the employer who has not provided notice.
The Illinois Cannabis Act defines when an employer may consider an employee to be impaired or under the influence and allows an employer to discipline an employee based on a good faith belief that an employee is under the influence or impaired. However, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.
Although the statute does not specifically say so, an Illinois court is likely to consider “good faith belief” to be an affirmative defense for which the employer has the burden of proof. In order to meet that burden of proof, employers with Illinois employees will want to have a written policy and procedure to follow to demonstrate that it provided the employee with a “reasonable opportunity” to contest the decision.
Will a court conclude that an employer did not have a good faith belief of impairment when it did not have a written procedure allowing the employee an opportunity to contest the decision? It comes down to fairness. Due process. If the employer provided the employee with notice of how to contest a decision and the employee did not avail herself of that opportunity, a court is more likely to conclude that the employer had a good faith belief that the employee was stoned at work and, therefore, that the discipline was lawful under the Illinois Cannabis Act.
Second, when Afroman sang that his company took his whole paycheck because he was high, he did not specify in the song whether he was non-exempt or exempt under the Fair Labor Standards Act, the federal law that governs minimum wage and overtime pay. Non-exempt generally refers to employees who are paid by the hour and are overtime eligible. Exempt generally refers to employees who are paid on a salary basis and are not overtime eligible. It is lawful under the FLSA to dock a non-exempt employee’s pay provided that the docking does not drive that employee’s pay under the minimum wage for the week.
Afroman, if he were non-exempt, would likely have a claim for violating the FLSA if his whole paycheck really was docked, because that would mean he got paid nothing for the week and therefore, the minimum wage he received for that week was below the current $7.25/hour required under the FLSA. I would not recommend docking a non-exempt employee’s whole paycheck for violating company policy on marijuana in the workplace. Regardless, your company should let its non-exempt employees know that violating the company’s marijuana policy could result in a disciplinary docking of pay.
For exempt employees who are paid on a salary basis, the FLSA regulations provide that “[d]eductions from pay of exempt employees may be made for unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct roles. Such suspensions must be imposed pursuant to a written policy applicable to all employees.” 29 C.F.R. § 541.602(b)(5). If, after January 1, 2020, employers want to be able to dock an exempt employee’s pay for violating a workplace policy on marijuana, it needs to have “a written policy applicable to all employees.” The FLSA regulations indicate the wisdom of disseminating a written policy on marijuana in the workplace that contains a procedure to follow if an employee wants to contest disciplinary action for violating the company’s policy on marijuana in the workplace. In other words, the FLSA also says address the elephant in the room.
Epstein Becker Green