On December 4, 2019, Illinois Governor JB Pritzker signed into law Senate Bill 1557. This new law contains various amendments to the Illinois Cannabis Regulation and Tax Act (“Cannabis Act”), 410 ILCS 705/1 et seq., and provides clarity regarding the interplay between the Cannabis Act and the Illinois’ Right to Privacy in the Workplace Act (“Right to Privacy Act”), 820 ILCS 55/1 et seq.
The Cannabis Act legalized (under state law) the adult-use of cannabis recreationally and goes into effect January 1, 2020. The Cannabis Act does not interfere with employers’ drug-free policies but instead expressly provides that employers are free to adopt reasonable zero-tolerance or drug-free workplace policies, provided that the policies are applied in a nondiscriminatory manner. In addition, the law provides that employers have the right to discipline or terminate an employee for violating a workplace drug policy.
As originally written, uncertainty remained concerning whether employers could discipline or terminate an employee pursuant to post-offer, pre-employment positive drug test, or even pursuant to a post-accident or random positive drug test. Much of the confusion was due to recent amendments to the Right to Privacy Act, which prohibit an employer from disciplining an employee for use of “lawful products” while off duty.
The recent amendments to the Right to Privacy Act deemed “lawful products” to include products that are lawful under state law, which effective January 1, 2020, would include cannabis used recreationally. This led to a possible interpretation that would create a cause of action for applicants who tested positive for cannabis at the post-offer, pre-employment stage because any such use would have been off-duty, in direct violation of the Right to Privacy Act. Continue reading ›