Update: Employers’ Expanded Rights to Prohibit Cannabis in the Workplace
We previously reported on the Illinois Cannabis Regulation and Tax Act (the “Legalization Act”), which legalizes the use of recreational cannabis beginning in January 1, 2020, and its impact on employers.
Specifically, the law as initially written provides some workplace protections for employers. First, employers can forbid employees from using cannabis at work (including in parking areas and company-controlled vehicles), or being under the influence of cannabis while performing job duties or while on call. Second, employers may discipline, or terminate, an employee for violating an employer’s reasonable workplace drug policy, including zero tolerance or drug-free, when an employee appears to be under the influence of cannabis. The employer must possess a “good faith belief that the employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance.” Symptoms can include signs related to speech or physical dexterity. Where a good faith belief exists, employers may also subject employees to random drug tests. As marijuana can linger in the system, a drug test result will be more persuasive if paired with obvious and documented evidence of demonstrated impairment while on duty. Thus, employers should document symptoms of drug use, particularly following any workplace accident. Prior to any employee discipline, an employer must give a reasonable opportunity to contest the basis for discharge.
However, we have been cautioning clients that the Legalization Act also amends the Illinois Right to Privacy in the Workplace Act, which prohibits discrimination against employees for their use of “lawful products” outside of work, including cannabis products. As many of our clients have recognized, this creates a potential cause of action for applicants who are denied employment due to a pre-employment positive drug test. This is true because an applicant for employment who possesses marijuana in his or her system has obviously used the product outside of the workplace.
Due to this tension presented and the uncertainty of employer rights, on December 4, 2019, Governor Pritzker signed SB 1557, a bill which amends and clarifies many portions of the cannabis-related laws. The Act was amended with respect to the employment context as follows:
Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for:
(1) 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.
Significantly, employers are now protected from liability for “withdrawal of a job offer due to a failure of a drug test.” This provides Illinois employers with significantly more latitude to implement their zero tolerance policies even in light of the issue of legalization.
Since the law does not protect employers from all potential liability, employers should still ensure that drug testing polices are reasonable and fairly implemented. Moreover, a post-employment positive drug test should be corroborated by the employer’s good faith belief that an employee was impaired or under the influence of marijuana while performing his or her job duties. Sufficient evidence would include documentation of the signs and symptoms that the employee is exhibiting, which would make it appear that he or she is under the influence. Therefore, employers should consider reviewing, revising and/or implementing reasonable suspicion checklists that will serve as relevant documentation.