Marijuana legalization creates quandary for employers

(KMOX)-When it comes to how businesses may deal with marijuana users in the workplace one thing is known, there are a lot of unknowns.

Acording to attorney Thomas Berry of Jackson Lewis P.C., it will take the courts to provide some answers.

Berry says because marijuana is a legal substance now, most employers can't prohibit its use by their workers while off the job. However, Illinois' statute does allow businesses to maintain a "reasonable" drug policy. The problem, according to Berry, is that in the 1,000-plus pages of statute, there is nothing defining "reasonable". "It's going to be largely dependent on the nature of the position. The nature of the duties. The nature of the safety risk. Obviously, the more significant those are the greater range of 'reasonable' would be to have more expansive policies." 

While drug testing is still allowed, Berry says, the question is what happens if an employee tests positive? "Are they required to prove there was a good-faith basis to believe they used before work, used while at work or were impaired when they showed up?"

And that challenge extends to those involved in on-the-job accidents. 

That's because, unlike with alcohol, drug tests can't prove impairment. "It's going to show you that they've used in the past," says Berry. "Depending on how regularly they use, it could be two weeks, it may be 30 days. Other drugs have a shorter cycle to metabolize out of your body." 

Berry says employers will want to note any other abnormal behavior that could help determine if the employee was impaired at the time.