Loyola University Chicago School of Law, JD 2021
The Illinois Cannabis Regulation and Tax Act
On June 25, 2019, Illinois Governor JB Pritzker signed the Illinois Cannabis Regulation and Tax Act, “The Cannabis Act” which legalized recreational cannabis beginning January 1, 2020 for adults aged 21 years and older. Illinois residents are permitted to possess 30 grams of cannabis flower, 5 grams of cannabis concentrate, and 500 milligrams of THC contained in a cannabis-infused product. The possession limits are to be considered cumulative. The legalization of adult-use marijuana for recreational purposes in Illinois does not modify the state’s medical cannabis pilot program.
The Cannabis Act and Illinois employers
The Cannabis Act allows Illinois employers to enforce “reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call provided that the policy is applied in a nondiscriminatory manner.” Originally, the Cannabis Act included explicit exceptions to employer liability for taking adverse employment actions against employees, stating that no cause of action shall arise against an employer for: (a) actions based on the employer’s good faith belief that an employee used or possessed cannabis while at work or working; or (b) actions based on the employer’s good faith belief that an employee was impaired or under the influence of cannabis while at work or working. It amended the Illinois Right to Privacy in the Workplace Act, which prohibits discrimination against employees for their use of “lawful products” outside of work (defined as lawful products under state law), to include cannabis and marijuana. Applicant testing typically only detects marijuana use outside the workplace for pre-employment and return-to-duty drug testing. Therefore, applicant testing does not typically detect marijuana usage on the job because the employee is not currently employed.
There was much uncertainty for employers in the provisions of the Cannabis Act, particularly as to whether employers could discipline or terminate an employee pursuant to post-offer, pre-employment positive drug test results, or even pursuant to post-accident or random positive drug test results. Employers who tested employees, based on reasonable suspicion, faced new exposure if a discharged employee claimed the employer lacked a “good faith belief” that the employee had been impaired by or under the influence of cannabis. For example, if the employer discharged some employees who tested positive but not others, a discharged employee could claim the employer lacked a “good faith belief” regarding impairment. Also, since there is currently is no legally or medically accepted definition of what constitutes “impairment”, or being “under the influence” of marijuana, the former employee could assert: (i) he or she was not in fact impaired at work; (ii) a positive test result alone cannot prove otherwise; and (iii) the employer still acted based solely on the test result, thus showing it lacked a good faith belief regarding the employee’s impairment.
Amendments to the Cannabis Act clarify employer liability
On December 4, 2019, Illinois Governor JB Pritzker signed into law Senate Bill 1557, which provides clarification regarding potential employer liability. The Illinois legislature amended the Cannabis Act to provide for an additional exception to employer liability, stating that no cause of action shall arise 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.
These amendments make clear that employers may continue pre-employment drug testing and, to the extent permissible by the employer’s policy, withdraw offers of employment to employees who tested positive for cannabis use, in addition to disciplining or terminating employees pursuant to failure of a drug test under a zero-tolerance policy. The new exception does not mention that the employer must have a good faith belief that the employee was impaired by, or under the influence of cannabis during working hours, as is required by the exceptions provided for in the Cannabis Act as originally enacted. The amendments to Section 10-50 appear to allow employers to discipline or terminate an employee based on a positive cannabis test result alone, whether that be through a random test, post-accident test, or any other basis.
The future for Illinois employers
Marijuana testing may remain a valuable tool for helping employers maximize productivity, reduce turnover, and avoid workplace accidents and injuries. However, it is just one tool. As other states’ experience suggests, Illinois employers will likely confront increased recreational marijuana usage, as well as additional workplace marijuana possession, use, and impairment. Due to recent marijuana developments, companies have to to re-think when to test, whom to test, what to test for, and how to make sure decisions based on test results comply with the varied but generally expanding protections for both recreational and medical marijuana use.
Although it’s not required of employers in Illinois, a best practice for employers who test current employees for marijuana is to establish a strong record of impairment independent of a marijuana-positive result. That would include thorough, contemporaneous documentation of the reasons employees are sent for reasonable suspicion testing. It could include an accident investigation report that rules out non-drug-related causes where circumstances warrant that conclusion.