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I. Illinois’ New Law Legalizing Cannabis for Adults Authorizes Employers to Maintain Zero Tolerance or Drug Free Workplace Policies and to Conduct Drug Testing.

The Illinois General Assembly enacted the Cannabis Regulation and Tax Act (“Cannabis Act”) on May 31, 2019.  Governor J.B. Pritzker signed the bill into law on June 25, 2019.  It takes effect on January 1, 2020.  The Cannabis Act, among other things, legalizes the possession and use of recreational marijuana for adults age 21 and older.  It directly addresses certain aspects of workers who use recreational marijuana both in and out of the workplace.  In response to concerns expressed by the Illinois Chamber of Commerce and other business organizations, the General Assembly amended the Cannabis Act on November 26, 2019.  The Governor has yet to sign this bill into law.  If he does nothing, the amendments take effect on January 13, 2020.

The Cannabis Act, as originally enacted, specifically authorized employers to enforce: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.

It further allows employers to prohibit either using cannabis or being under its influence either at work or while on call.  The Cannabis Act also permits employers either to discipline or to fire workers who violate the employer’s workplace drug policy.  It, furthermore, protects employers against legal liability if they discipline or dismiss an employee on the basis of their good faith belief of the employee’s being either impaired by cannabis or under its influence while working.

II. Before the Recent Amendments, the Law Legalizing Cannabis Put Employers at Risk of Legal Liability after Revoking an Applicant’s Job Offer or Firing an Employee for Testing Positive for Marijuana.

While the Cannabis Act offered some protections to employers faced with employees using cannabis or being under its influence at work, it also exposed them to liability in some circumstances.  Specifically, it also amended the Illinois Right to Privacy in the Workplace Act (“Privacy Act”).  It prohibits employers from discrimination against individuals who use lawful products outside of work.  The Cannabis Act’s amendments to the Privacy Act specifically added text defining lawful products as those lawful under state law.  Since federal law still prohibits the use and possession of cannabis, these amendments to the Privacy Act put employers in jeopardy if they conditioned job offers on an applicant’s drug test results lacking positive results for marijuana. On the one hand, they could lawfully revoke a job offer if an applicant tested positive for marijuana, an illegal substance under federal law.  On the other hand, the Cannabis Act essentially makes marijuana a legal substance under state law that an adult job applicant may lawfully use.  Thus, if an employer rescinded a job offer because of a job applicant’s positive drug test results for marijuana, it would discriminate against her or him for cannabis use outside of work in violation of the Privacy Act.

Many employers, furthermore, require workers on medical leaves to submit to drug tests before they return-to-work at the end of their leaves.  They too would face a similar dilemma.  A positive test result for marijuana at the end of a medical leave would merely show a worker’s cannabis use outside of work.  If the employer were to deny reinstatement to such a worker because of positive test results for marijuana, it would discriminate against her or him because of his use of cannabis outside of work in violation of the Privacy Act.

In addition, the Cannabis Act limited the use of workplace drug tests for current employees to circumstances in which employers had a good faith belief of the employee’s impairment.   The law, however, defined the meaning of neither a good faith belief nor impairment.  Thus, it exposed employers who administered any one or more of post-accident, reasonable suspicion, or random drug tests to challenges by employees who tested positive for marijuana and then experienced either discipline or the termination of employment.  Such an employee could bring a lawsuit challenging whether her or his employer lacked a good faith belief in her or his impairment.  The employee could alternatively claim that a positive test result offered no proof of her or his impairment.

III. Recently Enacted Amendments to the Law Legalizing Marijuana Largely Eliminate Employers’ Liability Risks for Implementing Their Drug Testing Policies.

In view of these dilemmas, the business community petitioned the legislature to amend the Cannabis Act to mitigate their exposure to liability because of workplace drug testing.  The General Assembly ultimately passed SB 1557, .  It amends the Cannabis Act to protect employers against liability because of their implementation of their workplace drug testing programs 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 non-discriminatory random drug testing, and discipline, termination of employment or withdrawal of a job offer due to a failure of a drug test.

SB 1577, sec. 705/10-50(e)(1). This provision shields employers from liability that deny employment to an applicant or fire an employee because of a test result positive for marijuana in accordance with their workplace drug testing policy.   It, however, adds a provision to the Cannabis Act without eliminating the other provisions requiring a good faith belief of the employee’s impairment or working under the influence of cannabis.  Effectively, the juxtaposing of these provisions leaves open the possibility of employees terminated because of positive test results for marijuana after post-accident, random, or other forms of testing the ability to  challenge their dismissals by lawsuits that claim an employer must still have a “good faith belief” of the employee’s being either impaired or under the influence of marijuana.  If challenged in court, positive test results alone would likely offer an insufficient justification to uphold such an employee’s dismissal.

The amendments provide a more effective shield to employers with respect to the revocation of employment offers to applicants who test positive for marijuana in a post-offer drug test.  The Cannabis Act, as amended, authorizes the “withdrawal of a job offer due to a failure of a drug test.”  §705-10(50)(e)(1).  Before the amendments, the Cannabis Act amended the Privacy Act to permit discrimination claims based on an individual’s use of “lawful products” under state law, namely cannabis.  The Cannabis Act’s amendments to the Privacy Act, however, included adding a specific exception from the discrimination claims authorized in the Privacy Act to discrimination claims  based on the Cannabis Act in its §705-10(50)(e)(1).  Thus, after the implementation of SB 1577, neither the Cannabis Act nor the Privacy Act creates any claims that would impose any liability against an employer that withdrew an employment offer from a job applicant that tested positive for marijuana in a post-offer drug test.

IV. Employers Need to Act Now to Update Their Drug Testing Policies before the Cannabis Act Takes Effect on January 1, 2020.

Employers should review their workplace policies regarding workplace drug use and drug testing.  The Cannabis Act allows employers to prohibit the use of marijuana by their workers during working time, on the employer’s business premises, and when employees have “on call” status.  The amendments to the original law likely means that those employers whose policies include pre-employment drug testing may continue them.  They may also lawfully withdraw job offers from applicants who test positive for marijuana in a post-offer drug test.

The use of positive test results for marijuana as grounds for discipline or termination during an employee’s employment may now have a “good faith” belief in the employee’s being either impaired by or under the influence of marijuana requirement.  Employers should address this requirement in their policies and when they implement either disciplinary action or fire an employee because of a positive test result for marijuana.

The Cannabis Act provides that employers “may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance.”  § 705-10(50)(d).  It further lists symptoms of marijuana impairment, such as: impairment of speech or physical coordination; mental effects including unusual behavior, odd demeanor, or negligence or carelessness in operating equipment or machinery; and disregard for a worker’s own safety or the safety of others.  Id.  The Cannabis Act, however, offers no guidance as to whether employers may only take disciplinary action against employees if they exhibit these particular symptoms.  Similarly, it lacks any clarity as to what proof of such symptoms an employer must have to satisfy the law’s requirements.

In view of the haziness of the good faith belief of the employee’s being impaired or under the influence of marijuana standard, employers should avoid imposing discipline or firing employees for positive test results for marijuana alone.  They should further require observations of the employee’s displaying signs of actual impairment by supervisors or managers.  In addition, employers should confront the employee with the specifics of those observations and give her or him an opportunity to admit, deny, or explain the behavior.  Finally, employers must document all symptoms of on-the-job impairment, especially instances that involve either workplace misconduct or safety violations.

The Cannabis Act, moreover, leaves the defense to workers’ compensation claims on the basis of an employee’s marijuana intoxication in place, at least, for employers that maintain policies that prohibit their workers from marijuana either use or intoxication, or both, in the workplace.  The Workers’ Compensation Act denies compensation to claimants (a) if their intoxication proximately caused their injury or (b) if their intoxication when the occupational injury occurred constituted a departure from employment.  820 ILCS 305/11.  The act also creates a rebuttable presumption of the claimant’s intoxication if she or he refuses to submit to a post-accident drug test.  To raise this defense, employers must have a policy that prohibits marijuana use or intoxication, or both, while working, being on the employer’s premises, or being on call.   They, furthermore, should keep copies of that policy signed by each employee in their personnel records for her or him. In addition, employers must use either blood or saliva tests rather than urine tests to have any chance of achieving the statutory requirement of proof of intoxication when the occupational injury occurred.  Both blood and saliva tests actually measure recent use much more precisely than urine tests do. Lastly, employers will still need evidence beyond the test results alone to establish the defense, such as eyewitness observations of the claimant’s using or ingesting the marijuana at work, slurred speech, impaired motor skills, unusual behavior, negligence or carelessness in the operation of machinery, or the claimant’s disregard for her or his own safety or that of others.

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