Most Illinois employers are already aware of the Illinois Cannabis Regulation and Tax Act (Cannabis Act) which, among other things, legalizes recreational use of marijuana in Illinois effective January 1, 2020.  On December 4, 2019, Illinois Governor J.B. Pritzker signed into law amendments to the Cannabis Act that, at a glance, appear to offer hope for employers seeking clarity about when they may discipline or refuse to hire an individual based on marijuana use. While the amendments make clear that employers may test applicants and employees for marijuana, the law continues to remain unclear as to what an employer may do with a positive marijuana result.

Under the Cannabis Act, employers may adopt “reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing.” The amendments go on to provide that nothing in the Cannabis Act is intended to create liability 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) (emphasis supplied).

It may be tempting to interpret this provision as a solid defense to disciplining or terminating an individual based on a positive marijuana test, but the text is actually less clear. The amendments permit employers to take adverse action based on a “reasonable” drug testing policy, but do not define what is “reasonable.” Also undefined is a “failure” of a drug test. Does evidence of any amount of THC mean the employee failed a drug test – even trace amounts that could reflect one-time use days, weeks, or months before the test (when the person perhaps was not yet employed), or use of CBD oil for inflammation or pain (which may contain trace amounts of THC but have no intoxicating effects)? Would terminating an employee based on evidence of this type of use be an action taken pursuant to a “reasonable” drug policy?

Possibly not, in light of the Illinois Right to Privacy in the Workplace Act (Privacy Act), 820 ILCS 55/5, which prohibits employers from taking adverse action based on off-duty use of legal products. The Privacy Act has been used, for example, to prohibit adverse action against people who smoke cigarettes off duty and away from employer premises.  The Privacy Act also would likely protect an individual who tests positive for trace amounts of alcohol that do not correlate with being under the influence on the job. Under certain federal regulations, for example, a .01 blood alcohol level does not correlate with being under the influence (see, e.g., 49 CFR § 40.255(a)(2)).

The Privacy Act clarifies that a “lawful product” means a product that is legal under state law – effectively incorporating use of marijuana into its protections as of January 1, 2020. Thus, effective January 1, the Privacy Act prohibits disciplining or refusing to hire a person “because the individual uses [marijuana] off the premises of the employer during nonworking and non-call hours.” Thus the Privacy Act appears to provide at least some level of job protection for lawful use of cannabis once it becomes legal, despite the fact that cannabis remains illegal under federal law.

In this context, the legislature’s repeated inclusion of “reasonable” in the Cannabis Act amendments is telling not so much in what it says, as in what it fails to say. It seems clear that an employer’s ability to act based on evidence of marijuana use is more limited than had the amendments not used the word “reasonable” at all. For the time being, it seems that further legislation, agency guidance, or case law may be needed to address issues surrounding pre-employment and random drug testing and what Illinois employers may safely do based on a positive result.

For more information about drug and alcohol policies, particularly in states legalizing recreational marijuana use, contact Schiff Hardin’s Labor and Employment Law professionals.