Hunton Employment & Labor Perspectives

Illinois joined the growing list of states to legalize marijuana as of January 1, 2020.  Employers with employees in Illinois should consider how the new law may affect their business, and review their policies to ensure compliance with the statute.

As an initial matter, state legalization will not affect employees in certain job positions.  The Illinois law states that corrections officers, law enforcement officers and several other public employees cannot use marijuana, even when they are off-duty.  In addition, employees with commercial drivers’ licenses subject to federal Department of Transportation regulations will remain subject to federal restrictions.

In December 2019, in response to employer concerns, Illinois amended its legalization legislation to attempt to ensure that legalized marijuana did not restrict an employer’s ability to impose zero-tolerance policies for drug use or impairment at work.  Under 410 ILCS 705 10-50, an employer may adopt drug-free workplace 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.”

Determining whether an employee is impaired at work can be difficult, however, because there are no reliable instant tests to determine whether someone is currently under the influence.  Under the statute, employers must possess a “good faith belief” that employees are under the influence of marijuana to issue discipline, and the statute specifically lists altered speech, coordination, agility, demeanor, irrational or unusual behavior, negligence or carelessness in operation of equipment or disregard for safety rules as potential evidence of impairment.  Further, if an employer elects to discipline an employee based on one of these rationales, the statute requires the employer to allow the employee a reasonable opportunity to contest the employer’s basis for its determination that the employee was impaired.

The December amendment to the Illinois law also clarified that employees will not have a cause of action against an employer if they are terminated or disciplined because of a failed drug test pursuant to a “reasonable workplace drug policy, including but not limited to subjecting the employee or applicant to reasonable drug and alcohol testing.”  But the statute is not clear on what qualifies as a reasonable policy or testing protocol.  If employers elect to continue to test for marijuana, they should outline their policy clearly and apply it consistently.

Employers with collective bargaining agreements covering Illinois employees should consider entering into side letters or memoranda of understanding with unions with respect to positive tests for marijuana.  It is reasonable to expect unions to vigorously defend disciplinary penalties issued merely for positive marijuana tests given the legal status in the state and the difficulty of discerning whether a positive test indicates an employee conducted work while impaired.

In general, employers should review their policies and confirm they are taking a reasonable, measured approach to drug policy enforcement in Illinois.  It is clear that certain classes of employees may still be subject to zero tolerance, and that applicants or employees in other jobs may still face discipline for testing positive for marijuana.  (This makes Illinois’s law unique from Nevada’s new law, which prevents employers from denying employment to applicants based on pre-employment positive tests for marijuana.)  But for current employees in fields outside of those limited by statute or federal law, the law suggests an employer should be prepared with documentary evidence to support a claim that it disciplined or terminated an employee for suspected impairment on the job, and provided an opportunity for the employee to contest the finding.