Easy Rider: Illinois Cannabis Trailer Bill Allows
Public Sector Employers/Collective Bargaining Agreements
to Regulate Cannabis Use by First Responders
By Jeff Burke, Attorney - Tuesday, December 24, 2019
Concerns about marijuana use by first responders may have gone up in smoke with a trailer bill proposing to amend the Illinois Cannabis Regulation and Tax Act to allow public employers and collective bargaining agreements to regulate cannabis use by police officers, corrections officers, probation officers, paramedics, and firefighters (1).
The bill rolls other amendments into the well known and recently passed Act, a 400-plus page behemoth dealing with all topics cannabis related, including growth, manufacture, sale, possession, taxation, regulation, and use of marijuana and cannabis infused substances, as well as expungement of past criminal records, restriction and licensing of cannabis dispensaries, and prohibition against discrimination in housing and/or lending to cannabis users.
While the original law made possession and use by the public generally legal—with significant restrictions—it prohibited use of cannabis “by a law enforcement officer, corrections officer, probation officer, or firefighter while on duty.” Concerns about recreational marijuana possession, transportation, and use by first responders “off duty” apparently pressured the General Assembly into a double take on this issue. It bears noting that while cannabis possession and use will be legal under state law, it remains prohibited under federal law—at least as of this article’s publishing. Also, issues surrounding off duty marijuana use by first responders have been present for years, at least since states outside of Illinois began legalizing its recreational and medical use over the past decade. For example, what if an Illinois police officer uses marijuana while on vacation in California, where it’s legal? Given how long chemicals from marijuana stay in the human body after its use, can a drug test discern how recently someone used it, and how much they used? How far can an employer go in restricting an employee’s off duty legal conduct? The Illinois law legalizing marijuana use has made answers to these questions, and others, more urgent.
The amendment hashes out some of the problems. Assuming it passes, the law will now state, in part:
“Nothing in this Act prevents a public employer of law enforcement officers, corrections officers, probation officers, paramedics, or firefighters from prohibiting or taking disciplinary action for the consumption, possession, sales, purchase, or delivery of cannabis or cannabis-infused substances while on or off duty, unless provided for in the employer’s policies . . . To the extent that this Section conflicts with any applicable collective bargaining agreement, the provisions of the collective bargaining agreement shall prevail. Further, nothing in this Act shall be construed to limit in any way the right to collectively bargain over the subject matters contained in this Act . . .”
The law previously prohibited use of marijuana “while on duty” explicitly, but it did not expressly forbid public employers from preventing marijuana use by policy or through a negotiated provision in a collective bargaining agreement. This amendment seems intended to clarify any ambiguity about whether a public employer can bar marijuana use among the designated employee groups, and also whether public employers have a duty to bargain over any restrictions they may impose. Clearly, they can prohibit the ingestion of cannabis products. It is also clear that the General Assembly intends to leave resolution of first responder marijuana use up to the collective bargaining process.
While possibly hidden in the Act’s many recesses, it is not apparent that it forbids marijuana use by judges, medical field employees like doctors and pharmacists, or those holding political office.
After the smoke clears from the Act’s implementation, how should contract negotiators respond to employer policies seeking to prohibit, limit, or allow marijuana use? Officer involved shootings, car crashes, and contacts with detainees and the general public mitigate against taking a strong “pro pot” position in contract negotiations. Given the current political climate and hyper scrutiny of police activity, it is probably best to just say “no”.
(1) It does not reference telecommunicators.