As referenced in our prior WISE blog article here, earlier this year Illinois enacted legislation legalizing recreational marijuana for adults, effective January 1, 2020 (the "Adult Use Act"). However, given the ambiguity in the original legislation as it related to employer liability and, more specifically, the liability for terminating (or withdrawing a job offer for) employees for testing positive for marijuana, the Illinois legislature recently passed (and the Governor signed into law), an amendment (SB 1557) that clarifies what employers can and cannot do under the Adult Use Act.
The primary source of confusion for employers under the original law was, on the one hand, it expressly allowed employers to adopt and enforce zero tolerance and drug free workplace policies (thereby allowing employers to terminate or withdraw offers of employment for employees who test positive for marijuana) but, on the other hand, modified the Illinois Right to Privacy in the Workplace Act by adding marijuana as a legal substance (thereby potentially creating a cause of action against employers if they did terminate an employee or withdraw and offer of employment for an applicant due to a positive marijuana test).
In response to this conflict, as well as significant concerns raised by the business community since the passage of the Adult Use Act, the Illinois legislature recently amended the law in SB 1557. Specifically, the amendment clarifies that there is no cause of action against an employer for actions (e.g., terminations, withdraw of offer, etc.) taken pursuant to a "reasonable workplace drug workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and non-discriminatory drug testing, and discipline, termination or employment or withdrawal of a job offer due to failure of a drug test." SB 1557, Section 705/10-50(e)(1). Moreover, because the Illinois Right to Privacy Act specifically excepts Section 10-50 of the Act, it is now much clearer that Illinois employers will not only be allowed to continue pre-employment drug testing (and withdraw offers of employment based on positive tests), but also discipline and discharge employees for testing positive, provided it is non-discriminatory.
This development is welcome news to Illinois employers. However, the recent amendment only addresses the Adult Use Act and does not clarify, for example, medicinal marijuana as an exception to the Right to Privacy in the Workplace Act. Moreover, the amendment also does not eliminate the “good faith belief” requirement, so employers who seek to discipline or terminate an employee based on a reasonable suspicion of being impaired should still be able to articulate the “good faith belief” of the impairment, as well as provide the employee the opportunity to contest the basis of the determination.
While the amendment certainly clarifies certain aspects of the Adult Use Act, employers should still tread carefully in terms of not only ensuring their workplace policies are reasonable, but also that they are being implemented in a reasonable, non-discriminatory fashion. Should you have any questions, or should you want your workplace drug policy reviewed, please contact your designated Saul Ewing Arnstein & Lehr LLP attorney.