Governor Pritzker Signs Amendments to Cannabis Act Clarifying Employers’ Rights to Test for Marijuana Use

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.

The Illinois legislature, in response to the confusion raised by the business community, amended the Cannabis Act to replace the original text of Section 10-50(e)(1) with the following text which provides that employers shall 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.

As amended, the Cannabis Act clarifies that employers do not violate the Right to Privacy Act when enforcing “reasonable” drug policies that include “withdrawal of a job offer due to a failure of drug test.” It is notable that the new exception does not contain the requirement that the employer has a good faith belief that the employee (or potential employee) was under the influence of, or impaired by, cannabis that the original version of Section 10-50(e)(1) contained. On the contrary, the newly amended text of the section appears to allow employers to discipline or terminate an employee based on a positive drug test alone. The specific effect of this change is almost certain to be clarified by the courts.

What is clear under these amendments is that employers are free to continue pre-employment drug testing and, to the extent permissible by the employer’s policy, withdraw offers of employment as a result of a drug test that tests positive for marijuana use. Given the complexity of the issues and uncertainty surrounding the law, employers should review their drug-testing policies and practices to ensure they are legally compliant. It is always advisable to have an experienced employment law attorney assist in the drafting, reviewing, and implementing of new employment policies and procedures of this nature.

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