Illinois Tees Up Employer Rules Around Marijuana Usage of Prospective Hires

December 30, 2021

Following the legalization of marijuana usage last year, Illinois has introduced legislation to navigate sectors of public life made murky by the drug’s newfound acceptance. Illinois house bill 4116 states that an employer may not refuse to hire someone or discipline an employee for a positive drug test for THC, the main part of marijuana that gets users high, unless the level of THC qualifies as impaired under the state’s driving under the influence law. In other words, rather than having some employers rejecting workers if they have any level of THC in their systems, the law will set a minimum level of 5 nanograms per milliliter of blood, or 10 nanograms per milliliter of urine, saliva or other bodily fluid. The law states that employers may continue with preemployment and random drug-testing, with a “zero-tolerance” policy, yet must allow up to the driving-while-impaired limit. Exceptions will be included for federal jobs and emergency workers. Perhaps one-third of employers don’t make marijuana a deal-breaker for workers, but many do not want to advertise it, he said, for fear of becoming a magnet for marijuana use.

Some employers worry the change will open the gates to more widespread use of marijuana by workers, said Todd Maisch, president and CEO of the Illinois Chamber of Commerce, which represents businesses throughout the state. The chamber didn’t oppose legalization because the law included protections for employers, but this new proposal undermines those standards and would lead to more lawsuits, he said.

The controversy comes as more employers, including Amazon and the Office of the Cook County Public Defender, are dropping marijuana abstinence as a requirement for some jobs. The Public Defender previously rejected attorneys who applied for assistant public defender jobs but failed marijuana tests. Cook County policy allows personal use of marijuana, except for “safety-sensitive” positions, which included assistant public defender jobs. County officials since changed that job designation to non-safety-sensitive, and the attorneys were asked to reapply.

The legislation would only apply to businesses that do not have any federal contracts because marijuana is still illegal at the federal level. The bill would provide exceptions for medical workers who would still be tested for THC.

If you have any questions on how this proposed legislation might effect your business please contact the attorneys at Rock Fusco & Connelly, LLC.