Friday, December 6, 2019

n June 25, 2019, Governor J. B. Pritzker signed legislation making Illinois the eleventh state to approve marijuana for recreational use. Recreational use of marijuana will be permitted by law beginning January 1, 2020. As we noted in our earlier article, “Legalized Cannabis in Illinois: What Employers Need to Know,” the Illinois Cannabis Regulation and Tax Act (the “Act”) explicitly permits employers to adopt “reasonable” zero-tolerance or drug-free workplace policies, so long as such policies are applied in a nondiscriminatory manner.

When the Act was initially passed, employers expressed concern that they might have to prove an employee was under the influence of cannabis when an employee failed a drug test. Employers also expressed concern regarding whether they could conduct random drug tests.

In order to address these issues, the Illinois General Assembly amended the Act via a trailer bill, Senate Bill 1557, during the fall legislative session. On December 4, 2019, Governor Pritzker signed the legislation into law as Public Act 101-0593. The changes took effect with the governor’s signature.

The amendments clarify an employer’s ability to conduct pre-employment and random drug tests (employers may also conduct reasonable-suspicion and post-accident tests), and to take action due to a failure of a drug test. The amendments specifically provide, “Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.” 410 ILCS 705/10-50 (e)(1).

Despite this employer-friendly amendment, workplace drug policies still must be both reasonable and nondiscriminatory. While the amendments clarified several concerns expressed by employers, the amendments did not address what a “reasonable” policy is. As such, employers may want to review their workplace drug policies and give additional thought to standards of reasonableness.