James J. Oh, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Chicago office, was interviewed by Roe Conn on WGN Radio on the topic of legalized marijuana in Illinois and the implications for the workplace.

Following is an excerpt:

RC: Now that that’s legal in Illinois … people who have employment contracts where they sign some sort of work agreement … often those agreements have a proviso that prohibits the employee from engaging in marijuana … and if there’s random drug testing … you could be terminated or in some other way reprimanded by the company. That could happen. Right? But now it’s legal. …

Jimmy Oh is with us. He is an attorney at law and he is with the law firm Epstein Becker Green. …

So, you sign a contract before the change of the law. Right? So when the law changes, does that supersede the contract?

JO: Well, most employment contracts are not going to specify something about marijuana. They might have something about personal conduct …

RC: But what if they do? There are some that have drug – when I first started working … we had drug testing when I first worked in radio, at another station, at a big company, and they had this rule that you couldn’t get hired if you had marijuana in your blood stream or anything else.

JO: And that’s still going to be the case in Illinois.

RC:Even though it’s legal.

JO: Even though it’s legal. The Illinois legislature was very pro-employer … and they put into the bill the strongest employer protections of any marijuana legalization bill in the country.

RC: And so they can still reprimand you or fire you or whatever if marijuana is part of those restricted drugs right?

JO: Yes, and so if you have a drug testing policy now you can continue to have it. If you have random drug testing you can continue to do it.

RC: But if you pop for marijuana are they gonna fire people?

JO: Well, it depends on what your company’s philosophy – policy – is and that’s one of the things I was encouraging companies to do is at least get out there and make a decision and then tell your employees “Here’s what our policy is, here’s what our policy is going to be.” …

RC: What’s the best way to find out policy? What if people are nervous to go to their bosses? …

JO: People aren’t going to want to look like Cheech and Chong or sound like Cheech and Chong and say “Hey dude, what’s our policy going to be on marijuana?” … and so I was recommending to companies that they get out in front of the issue so that they can give their employees notice.

Related reading:

Health Employment and Labor Blog, “Employer Insights: Recreational Marijuana in Illinois,” by James J. Oh and Kathleen A. Barrett.

Health Employment and Labor Blog, “Employer Insights: Illinois’ Permanent Commitment To Medical Marijuana,” by James J. Oh and Kathleen A. Barrett.


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