Employers terminating employees for violating a company drug policy should pay close attention to the policy’s phraseology.  In Eastham v. The Housing Authority of Jefferson County, 2014 IL App (5th) 130209, the employer’s drug policy prohibited the use of alcohol and controlled substances “while in the course of employment.”  The employee admitted using cannabis weeks earlier and that he may fail a random drug test.  The employee was fired for violating the policy, but the test came back negative.

The appellate court affirmed the circuit court’s decision that the employee did not engage in “misconduct,” a three-pronged test, under the Illinois Unemployment Insurance Act (“Act”).  The court concluded that the policy only prohibited employees from using or possessing drugs or controlled substances, or being under the influence thereof, while on the job.  Since the drug test did not detect any measurable amount of cannabis in the employee’s system, the employee was not under the influence of cannabis while at work.

The employer also argued that since it receives federal funding, it was required to maintain a drug-free workplace.  The court, however, found that the federal statute did not require grant recipients to terminate employees for off-duty cannabis use.

The court distinguished generally misconduct that could warrant an employee’s termination from statutory “misconduct” under the Act.  While the former could justify a discharge, it does not necessarily mean that the reasons would disqualify the employee from receiving benefits under the Act.  The Act sets forth a higher “misconduct” standard as compared to a lower standard that employers may set for their own workforce.

Since medical cannabis is now legal in Illinois, employers should now be mindful of the Compassionate Use of Medical Cannabis Pilot Program Act when crafting drug policies.