Update to Recreational Marijuana in Illinois

We previously reported, on June 28, 2019, about the effects legal recreational use of marijuana under the Illinois Cannabis Regulation and Tax Act (the “Cannabis Act”) may have on Illinois employers come January 1, 2020.  As initially written, the Cannabis Act left open questions and concerns for employers, including whether employers could take action against an applicant or employee based on just a failed marijuana drug test and whether they could conduct random drug tests.

On December 4, 2019, Governor Pritzker signed into law amendments to the Cannabis Act, addressing these concerns. The amendments provide:

Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer 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. 

410 ILCS 705/10-50 (e)(1).

So, what does this mean employers can do?

It follows that under the Cannabis Act, as long as an employer has a “reasonable” workplace drug policy, the employer may:

• Conduct pre-employment drug tests and withdraw a job offer to a candidate based on a positive test for marijuana.

• Conduct random drug testing, as long as it is both reasonable and non-discriminatory (meaning, it is truly random).

• Discipline or terminate an employee for a positive marijuana test.

It is unclear, however, whether the use of medical marijuana outside of work, which may result in a positive test, must be accommodated. 

What is a “reasonable” policy?

Neither the Cannabis Act nor the amendments define what is a “reasonable” drug policy.  Employers should review their policies with special thought to whether they are reasonable, and may want to engage legal counsel.