As we previously blogged, the Illinois Cannabis Regulation and Tax Act will legalize recreational cannabis for Illinois adults starting January 1, 2020. That Act (sometimes the “Legalization Act”) specifically preserves Illinois employers’ rights 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.” The Act permitted employers to prohibit employees from being under the influence of or using cannabis in the employer’s workplace or while on call. Further, the Act noted that employers have the right to discipline or terminate an employee who violates the employer’s workplace drug policy. The Act specifically noted that it did not create a cause of action for subjecting employees or applicants to reasonable drug and alcohol testing under the workplace’s drug policy, or discipline based on the employer’s “good faith belief that an employee used or possessed cannabis in the employer’s workplace or while performing the employee’s job duties or while on call.”
However, the law raised questions about new potential liabilities for Illinois employers. First, the Act amended the Illinois Right to Privacy in the Workplace Act to prohibit discrimination against employees for their use of “lawful products” outside of work (defined as lawful products under state law) to include cannabis and marijuana. This created a potential cause of action for applicants who failed a post-offer, pre-employment drug test due to past marijuana use. By definition, a post-offer, pre-employment drug test only could detect marijuana use outside the workplace. Return-to-duty drug testing presented similar liabilities, typically detecting drug use before the employee had intended to work. Employers who tested current employees, e.g., post-accident used on reasonable suspicion, faced new exposure if the employee contested employer discipline as not based on the employer’s “good faith belief” that the employee had been impaired by cannabis in the workplace.
With the January 1, 2020 deadline approaching, Illinois business community representatives raised numerous concerns with lawmakers. The Illinois Chamber of Commerce proposed revisions to the Act, to clarify provisions that permitted drug testing and to limit causes of action under the Act. Both Houses have passed SB 1557, a bill which amends and clarifies many portions of the cannabis-related laws. The Act as amended would say:
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 nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.
This new provision is separate and apart from the Act’s safe harbor for employer decisions “based on the employer’s good faith belief that an employee used or possessed cannabis in the employer’s workplace or while performing the employee’s job duties or while on call in violation of the employer’s employment policies.”
The revisions do not fully assuage Illinois employers’ concerns with Workplace Privacy Act liability for post-offer pre-employment drug testing. The provision only addresses a cause of action under the Legalization Act, and does not address employee and applicant suits under Illinois Workplace Privacy Act. However, the Workplace Privacy excludes refusal to hire claims where that exclusion is “specifically provided by law, including Section 10-50 of the Cannabis Regulation and Tax Act.” Though the intent of the two laws was to prohibit lawsuits founded on failed post-offer, pre-employment tests, the two laws taken together are somewhat unclear and ambiguous. Absent any explanatory regulations, employers will still face some potential liability if they are to revoke job offers on the basis of failed post-offer, pre-employment marijuana test results.
As to current employee drug testing, the proposed amendments should reassure employers that they have the right to test employees and discipline those who fail drug tests. The new provisions further limit causes of action for employees disciplined pursuant to a reasonable drug and alcohol policy. However, the language regarding the employer “good faith belief” remains in the Act. This may mean that employees bring litigation challenging bases for drug testing in Courts.
Governor Pritzker has not yet signed the bill into law. Accordingly, the revisions are not yet law, crossed the next hurdle, time to sign, etc. We will continue to monitor developments in this area closely, and will keep employers informed.