On June 25, 2019, Illinois became the eleventh state to legalize recreational cannabis with the enactment of the Illinois Cannabis Regulation and Tax Act (the “Cannabis Act”). Yet despite legalizing recreational cannabis use, the Cannabis Act specifically allows for reasonable, non-discriminatory zero tolerance or drug free workplace polices. This created potential tension with the Illinois Right to Privacy in the Workplace Act (the “Right to Privacy Act”) that prohibits employers from discriminating against employees for their use of “lawful products off the premises of the employer during nonworking and non-call hours” such as cannabis.
Due to the tension between these laws, employers questioned whether an adverse employment action based on a failed drug test also required proving that the employee was under the influence of cannabis at work. Employers also questioned their ability to require and act on pre-employment and random drug tests.
On December 4, 2019, Illinois Governor J. B. Pritzker attempted to address these concerns by signing into law amendments, contained in Public Act 101-0593, to the Cannabis Act (the “Amendments”). The Amendments state that an employer will not be liable 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.
410 ILCS 705/10-50 (e)(1).
The Amendments provide some much needed clarity and directly address pre-employment and random drug testing. However, there are two issues employers should carefully consider as they craft and implement workplace drug policies in Illinois. First, the Amendments do not eliminate the employee protections under the Right to Privacy Act and the Illinois Compassionate Use of Medical Cannabis Program Act. Second, neither the Amendments nor the Cannabis Act provide any guidance as to what constitutes a “reasonable” workplace drug policy. Accordingly, employers should review their workplace drug policies in light of the recent Amendments and the wide range of other state and federal laws that may apply.
If you have any questions regarding the issues raised in this client alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.