Previously, we warned how the Cannabis Regulation and Tax Act (Cannabis Act) will directly impact Illinois employers’ responsibilities and liabilities when drug testing, disciplining or terminating employees because of the use or possession of cannabis.
Then, in December 2019, Gov. J.B. Pritzker signed amendments into the Cannabis Act. At first glance, it appears these amendments, Public Act 101-0593, are employer-friendly because they have relieved some of the tension between Illinois’ Right to Privacy in the Workplace Act (Right to Privacy Act) and the Cannabis Act. For example, under the amendments to the Cannabis Act, an employer may retract a job offer based on an applicant’s cannabis use before beginning employment.
However, the new amendments to the Cannabis Act do not disturb the Cannabis Act’s prior amendments to the Right to Privacy Act. Still, under the Right to Privacy Act, Illinois employers may be prohibited from discriminating against employees who use “lawful products (like cannabis) off the premises of the employer during nonworking and non-call hours.” Because an employee may fail a drug test even several days or weeks after use, employers will have difficulty demonstrating that a failed test equates to being under the influence of cannabis at work. Thus, Illinois employers could be open to discrimination claims from employees who claim that a failed drug test was the result of cannabis use off premises and during nonworking hours.
As a result, Illinois employers should still consider the following:
- Reasonable workplace drug policies and reasonable drug-testing policies: The new amendments neither specify what constitutes a reasonable workplace drug policy nor a reasonable drug-testing policy. To make matters worse, a reasonable drug-testing policy in one industry may not be reasonable in another industry. For employers regulated by USDOT and federal or state contractors, random drug testing is reasonable because the Cannabis Act does not impact the prohibition on drug use and drug testing for these employers. But in other industries, random drug testing may not be reasonable as it could conflict with the Right to Privacy Act.
- Employment decisions solely on a failed drug test: Section 10-50(d) is a safe harbor for employers. Employment decisions should be based on a good-faith belief and supported with documentation noting an employee’s articulable symptoms of impairment while at work. In fact, at least one court has addressed this under a similar statutory structure and found that “without any evidence that Plaintiff ‘used, possessed or was impaired by marijuana’ at work on [a date], it is clear that Defendant discriminated against Plaintiff in violation of [the state’s Medical Marijuana Act] by suspending and then terminating Plaintiff solely based on her positive drug screen.” Whitmire v. Wal-Mart Stores Inc., 359 F. Supp. 3d 761, 791 (D. Ariz. 2019).
- Implementing procedures allowing employees to contest the determination that they were under the influence or impaired by cannabis while at work. Under Section 10-50(d), “if an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.”
- The amendments to the Cannabis Act do not eliminate the protections afforded to employees under Illinois’ Compassionate Use of Medical Cannabis Program Act.