Recreational Cannabis and Employee Drug Testing in Illinois
by Judy Herrmann, Mikkie Schiltz, and Maegan Gorham
This is the second installment in our week-long series focused on the Illinois employment law changes for 2020. Today, we discuss the topic everyone’s talking about: marijuana.
Beginning January 1, 2020, the Cannabis Regulation and Tax Act (Cannabis Act) makes recreational Cannabis legal in Illinois for people over age 21. The initial draft of the Cannabis Act called into question whether employers could continue drug testing applicants and employees for cannabis, but an employer friendly amendment was later passed that provided clarity for employers. The employer friendly amendment to the Cannabis Act states:
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.
This amendment addresses the conflict between the Cannabis Act and the Illinois Right to Privacy in the Workplace Act (Privacy Act). The Privacy Act allows a person to consume any “lawful product” on his/her own time and prohibits an employer from firing or disciplining an employee at work for using a lawful product. The recent amendment to the Cannabis Act clarifies that employers can continue testing for cannabis pursuant to the employer’s drug testing policies as long as the drug testing policies are reasonable and applied in a nondiscriminatory manner. The amendment does not specifically list post-accident and reasonable suspicion testing, but it states “including but not limited to” before giving examples of tests, so arguably those forms of testing are included.
The decision whether to test applicants and employees for cannabis is a business decision for employers. While there is still potential risk for employers who conduct drug testing, studies show that employees failing marijuana drug tests has increased 35% since 2010 and 71% in areas where recreational marijuana was legal. Employees who test positive for THC have 55% more industrial accidents, 85% more injuries, and 75% more absenteeism.
Do Employers Need To Have A Written Drug Testing Policy?
The Cannabis Act requires that employers who conduct drug testing must do so pursuant to a “reasonable workplace drug policy,” and in a nondiscriminatory manner. The Cannabis Act does not define what a “reasonable” policy must include. It is recommended that employers who are conducting drug testing do so pursuant to a written policy that sets forth the drug testing processes, and also states that the policy will be applied in a consistent and nondiscriminatory manner. Employers must also ensure that supervisors are properly trained on issues related to drug testing.
What Can An Employer Do If The Employer Believes An Employee is Impaired By Cannabis At Work But Does Not Send the Employee For A Drug Test?
Employers still have the right to take action if an employee is impaired at work or “on call.” If an employer elects not to adopt a drug testing program or decides to take disciplinary action against an impaired employee without conducting drug testing, under the Cannabis Act the employer must demonstrate a good faith belief an employee is under the influence of cannabis or impaired in the workplace prior to terminating or disciplining an employee. It is not enough for an employer to conclude “the employee was impaired at work due to cannabis.” Instead, an employer must have a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, which include:
- Symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior; or
- Negligence or carelessness in operating equipment or machinery; or
- Disregard for the safety of the employee or others; or
- Involvement in any accident that results in serious damage to equipment or property; or
- Disruption of a production or manufacturing process; or
- Carelessness that results in any injury to the employee or others.
The employer’s documentation should include an assessment of these facts. It is also recommended that employers obtain documentation from at least two different individuals who observed the symptoms noted above. It is also important to note that if an employer is disciplining or terminating the employee based on these circumstances, the Cannabis Act requires that employers allow the employee a reasonable opportunity to contest the basis of the employer’s determination that the employee is under the influence or impaired by cannabis, and then the employer must make a final, good faith determination the employee was impaired at work by cannabis after considering the employee’s explanation. Employers should carefully document that this “due process” step was followed. Employers should consider using these steps for reasonable suspicion drug testing in Illinois for all substances, not just cannabis. This is also another issue that should be addressed in an employer’s written drug testing policy, and supervisors should be trained on this issue.
Does An Employer Have To Allow Cannabis At Work?
The Cannabis Act does not require an employer to allow employees to use or possess cannabis at work. A private employer may still maintain a drug-free work environment and restrict or prohibit the use or possession of cannabis on its property, including areas where vehicles are parked.
Can An Employee Be disciplined Just For Using Cannabis?
An employee cannot be disciplined for using cannabis on his/her own personal time. However, as noted above, an employee may be disciplined for violating an employer’s reasonable drug testing policy as long as the policy is reasonable and applied in a nondiscriminatory manner.
What About Employers That Are Required To Follow Federal Law?
Cannabis is still an illegal controlled substance under federal law, and the Cannabis Act addresses this issue:
Nothing in this Act shall be construed to interfere with any federal, State or local restrictions on employment including, but not limited to, the United States Department of Transportation regulation 49 CFR 40.151(e) or impact an employer’s ability to comply with federal or State law or cause it to lose a federal or State contract or funding.
Employers who meet these standards should document what specific requirements they have to follow under State and federal law, and the specific source of those requirements. This information should also be communicated to applicants and employees.
What Should Employers Do Now?
Review and update drug testing policies, distribute the updated policies to applicants and employees, and train supervisors on the new policies.
Attorneys in the Lane & Waterman Labor & Employment Law Group are ready to advise employers on compliance with the Cannabis Act.
Please reach out to your primary contact at Lane & Waterman or to the Labor & Employment Law Group at (563) 333-6697 to begin your policy updates and ensure compliance with this new law.
The Lane & Waterman Employment Law Group: