Workplace Drug Testing Protections Added By 11th Hour Change to Illinois Cannabis Act

On January 1, 2020, recreational cannabis use became legal in the State of Illinois. But as we previously reported here, Illinois’ new cannabis law raised questions about whether employers could continue workplace cannabis testing under circumstances previously taken for granted, including pre-employment and random testing.

On December 4, 2019, Governor J.B. Pritzker signed into law Public Act 101-593 (The “Amendments”) in an apparent attempt to answer those questions and include certain new protections for workplace drug testing. Today’s post describes these amendments and identifies what employers should do now.

The Pre-Amendment Dilemma

As first enacted, the new cannabis law called into question whether private employers could still maintain zero-tolerance drug-free workplace policies, particularly in light of Illinois’ Right to Privacy in the Workplace Act (the “Privacy Act”). The Privacy Act specifically prohibits an employer from disciplining or firing an employee for use of “lawful products” off premises during non-work time or when not on call. Consequently, many interpreted the new law, as read in conjunction with the Privacy Act, to prohibit any workplace drug testing that could lead to detection of, and discipline over, cannabis use outside of work, such as pre-employment and random drug testing.

Some “Reasonable” Testing Now Protected

The Amendments clarify that employers may continue conducting “reasonable” and “non-discriminatory” pre- and post-hire and random drug tests for marijuana.

The new law specifically states that the cannabis act does not create or imply a cause of action (i.e. a legal claim) 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 non-discriminatory random drug testing, and discipline, termination of employment or withdrawal of a job offer due to a failure of a drug test.”

Employers Need to Refresh Their Drug Testing Policies

The new law does not clearly define the terms “reasonable workplace drug policy,” or “reasonable” or “non-discriminatory” testing. Until the courts clarify these terms, employers who discipline workers or who refuse to hire applicants based on a positive cannabis test result, face a heightened risk of getting sued.

Therefore, employers should review their drug testing policies and practices promptly with an employment lawyer so that they can make any necessary adjustments that will strengthen their defenses ahead of these likely legal challenges.