December 18, 2019

Illinois Joins the Legalization of Recreational Marijuana Use Trend – PART II: Drug Testing

December 18, 2019

In just a few short weeks, Illinois will allow for the recreational use of marijuana.  Highlighted in Part I of our series, one of the main concerns employers have raised is on the issue of employee drug testing, and what employers can do under the new law.  While the new Illinois law allows employees to use and possess cannabis, it remains illegal federally. The Cannabis Regulation and Tax Act does not affect the employer’s ability to comply with federal or other state laws; therefore, employers have the right to prohibit the use of cannabis.  Under the new law, employers:

  1. May ban the use of marijuana at the workplace.
  2. May ban the use of marijuana while on-call, so long as the employee is scheduled with at least 24 hours’ notice to be on “stand-by.”
  3. Are allowed to forbid employees from arriving to work under the influence of marijuana or using marijuana while performing job duties or while on-call.
  4. May discipline or discharge employees if the employer possesses a “good-faith” basis that the employee is under the influence of marijuana at work, on call, or performing job duties.
  5. Can administer drug tests to employees.  However, the employer must, on a “good-faith” basis, believe that the employee used or was under the influence of cannabis while working, performing job duties, or on-call.
  6. Must allow employees an opportunity to contest the basis for the employer’s determination that the employee was under the influence or “impaired” by marijuana.

While reasonable zero-tolerance drug policies are allowed, the policy must be used in “good-faith,” and must be non-discriminatory.  The law states that an employer has a “good-faith” belief that the employee manifests symptoms while working that decrease or lessens the employee’s performance of the duties or tasks of the employee’s position to include:

  • Employee’s speech, demeanor, physical dexterity, coordination, and/or agility;
  • Irrational or unusual behavior;
  • Negligence or carelessness in operating equipment or machinery;
  • Disregard for the safety of the employee or others;
  • Involvement in any accident that results in serious damage to equipment or property;
  • Disruption of a production or manufacturing process; or,
  • Carelessness that results in any injury to the employee or others

With this new law, employers should revisit drug testing policies to ensure they comply with the new law, should ensure supervisors are trained and capable of identifying impairment signs and procedures, and should clearly communicate any new drug policy changes to employees.  Be on the lookout for Part III of our series, where we will discuss the Cannabis Act’s impact on workers’ compensation claims. If you have any questions on this law and the potential impact on your business, please contact any attorney at Wiedner and McAuliffe by email or phone at 312-855-1105.