This article was written by Constantine (Dino) Koutsoubas, Jennifer Fischer, and Matthew C. Luzadder and originally posted to Kelley Drye’s Labor Days Blog.

On June 25, 2019, Governor Jay B. Pritzker signed the Cannabis Regulation and Tax Act (HR1438) (“Cannabis Act”) into law. When the law goes into effect on January 1, 2020, Illinois will be the second largest state (after California) to allow the use and possession of recreational cannabis for all citizens over age 21. Notably, Illinois is the first state to legalize recreational cannabis use through legislative action, rather than ballot initiative.

Businesses in Illinois should have one simple question in mind: what can we do about drug testing now that employees have the right to use cannabis under state law? Can these employers still prohibit their employees from using cannabis when they are at work? Can these employers still prohibit their employees from partaking in cannabis when they are not at work?

The answer is, of course, it depends. Unfortunately, the Cannabis Act provides conflicting language on precisely what employers can do in terms of drug testing for employees.

What Employers Can Do

● Employers May Restrict Being Under the Influence of Cannabis During Working Hours

First, employers are allowed to restrict employees from being “under the influence of or use cannabis in the employer’s workplace or while performing the employee’s job duties or while on call.” Cannabis Act at § 10-50(b). Illinois employers may need to amend existing policies to expressly state that the use of cannabis will not be tolerated on premises and that employees are not to be under the influence of cannabis during working hours. Specifically, Section 10-50(e) protects employers for actions founded on an 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.”  Workplace possession of paraphernalia, however, is not explicitly discussed.

● Federally Regulated Employers May Continue Their Zero-Tolerance Policies

Second, as with Illinois’ medical cannabis law, an employer may continue any testing program that federal, state, or local restrictions require. For instance, companies that must comply with Department of Transportation regulations to maintain a drug testing program—airlines, trucking companies, rail companies, etc.—may maintain those policies as it pertains to cannabis. Id. at § 10-50(g) Similarly, organizations may keep their existing policies in place if changing those policies would jeopardize federal contracts or federal grants. Id. These federally regulated employers should update their policies to note that they will continue to test for cannabis despite its legal status in Illinois.

● Employers may adopt “Reasonable” Zero Tolerance Policies

On the one hand, Section 10-50(a) of the bill states that employers are allowed to adopt “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.” (emphasis added). Furthermore, Section 10-50(c) allows employers to discipline or terminate employees who violate those policies. These sections would tend to indicate that an employer could maintain a policy of random drug screening for cannabis in certain situations similar to those for federally regulated companies. But courts may have to decide what is a “reasonable” zero tolerance or drug free workplace policy in a particular instance.

● Employers May Use “Good Faith” To Determine Drug Use At Work

Section 10-50(d) notes that “[a]n employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position….” Moreover, while Section 10-50(e) of the Act provides immunity to an employer if it takes an action against any employee, including testing that employee under a policy, or takes action against an employee for refusing testing, the action must be “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.” These provisions of the Cannabis Act indicate that an employer should meet a “probable cause” or reasonable suspicion-like standard before requesting (or acting on) a drug test for cannabis. A positive test, in itself, is unlikely to be sufficient to shield the employer from liability if the test administration lacked a good faith basis.

Impact on the Illinois Right to Privacy in the Workplace Act

The Cannabis Act’s amendments to the Illinois Right to Privacy in the Workplace Act, 820 ILCS 55/5, and their subsequent impact, are not clear. The existing statute reads, “it shall be unlawful for an employer to refuse to hire or to discharge any individual … because the individual uses lawful products off the premises of the employer during nonworking hours.” 820 ILCS 55/5(a). The Cannabis Act, however, confirms that “lawful products” means “products that are legal under state law,” which must be read to explicitly include cannabis given this context. Cannabis Act at § 900-50. Compare to Coats v. Dish Network, L.L.C., 303 P.3d 147, 150–51 (Colo. App. 2013) (holding that that “lawful activity” under a similar statute did not include medical marijuana because medical marijuana use was prohibited by federal law.)

But, at the very beginning of the amendment to the Right to Privacy in the Workplace Act, the Cannabis Act adds an explicit reference to Section 10-50 of the Cannabis Act in its initial exclusionary clause:

“Except as otherwise specifically provided by law, including Section 10-50 of the Cannabis Regulation and Tax Act … it shall be unlawful for an employer to refuse to hire or to discharge any individual … because the individual uses lawful products off the premises of the employer during nonworking and non-call hours.” (additions boldeded).

Arguably, the inclusion of this amendment effectively removes the Cannabis Act from being included in the Illinois Right to Privacy in the Workplace Act, though it is not clear that this was the intention of the General Assembly.

In the end, it is unclear what, if anything, the changes to the Illinois Right to Privacy in the Workplace Act mean in the context of Section 10-50 of the Cannabis Act. At the very least, Section 10-50 of the Cannabis Act seems to trump the Illinois Right to Privacy in the Workplace Act to the extent there is a conflict.

Reasonable Drug Testing Policies 

Under 10-50(a), an employer is allowed to have “reasonable” drug testing policies, but affected employees will surely test those policies in court if the policies seek to regulate an employee’s legal cannabis usage.

A zero-tolerance testing policy against cannabis might be reasonable for workplace settings where life and limb might be at risk (i.e. construction sites, manufacturing involving heavy equipment, hospitals). In those situations, the risk of death or serious bodily harm due to impaired employees might justify a proactive testing program—particularly if the outward symptoms of impairment may not present themselves until it is too late.

On the other hand, it may not be reasonable to have a zero-tolerance testing program in an office or retail setting. A consulting firm, for instance, might have a hard time convincing a judge that it has an interest in prohibiting cannabis usage outside of its offices.

Changes in Testing Methodologies May Change The Landscape

The answers might become clearer as drug-testing methodologies improve. The active component of cannabis that leads to impaired judgment is delta-9-tetrahydrocannabinol (“delta-9-THC”). Once it is in the blood, delta-9-THC has a half-life of less than 30 minutes in the blood. Indeed, because of this, delta-9-THC is undetectable in urine. That is why most tests look for the metabolites of delta-9-THC—the chemicals that the body converts delta-9-THC to in order to remove it from the body. Detection of these metabolites occur for up to 30 days post cannabis usage.

The current tests are not precise enough to fit into the legal framework of the Cannabis Act. This is because, by their very nature, they necessarily will capture legal cannabis usage in Illinois. If future tests were to focus simply on delta-9-THC as opposed to metabolites, drug testing will be able to accurately capture an employee being under the influence of cannabis while at work or on a call, rather than his or her legal use of cannabis during non-business hours.

Until there is a delta-9-THC test that can be quickly administered, non-federally regulated employers should be cautious about maintaining a cannabis testing protocol for their employees.

Suggested Policy Revisions

Employers who implement drug testing to employees or job applicants should to re-visit their drug testing policies to make sure they are in conformance with the Cannabis Act. Here is what the policy can require:

● employees cannot come to work under the influence of cannabis;
● employees cannot use cannabis products during work hours; and
● the employee to submit to a drug test if the employee exhibits behaviors consistent with being under the influence of cannabis.

To the extent an employer wishes to continue their zero-tolerance approach under current testing methodologies, they should be prepared to provide a reasonable justification for that approach.

Employers should also ensure that if comprehensive drug testing is done, the testing is either not testing to cannabis, since it could result in a false positive for an employee’s legal use of cannabis outside of working hours, or the testing is designed to detect recent cannabis usage, once the testing methodologies have advanced.

If you have questions about your policies regarding drug testing, please contact Kelley Drye’s Labor and Employment Team.