Proposed Legislation: How a New Law on Marijuana Drug Tests May Impact Employment Law

September 7, 2022

As cannabis usage continues to become more prevalent, employers should remain aware of laws that impact employment. A proposed amendment to the Right to Privacy in the Workplace Act provides safeguards for employees surrounding marijuana usage in the workplace. So long as the drug does not impair an employee’s ability to work, an employer may not refuse hire or take adverse action against an employee under the pending legislation.

Illinois House Bill 4116 proposes to limit an employer’s ability to discipline employees based on cannabis usage.  Specifically, the bill states that “an employer may not refuse to hire an individual or discipline an employee because results of an individual’s drug test indicate the presence of THC.” The bill further stipulates those certain conditions must be met in order for an employer to take disciplinary action towards an employee. Specifically, the level of THC, the main psychoactive compound in cannabis, detected must be of the level of “impaired” under Illinois’s DUI provision of the Illinois Vehicle Code. This means that employees will be protected from termination if their THC levels fall within the permissible limit and employers will be restricted from taking disciplinary action unless specified conditions are met.

However, the proposed bill does enable an employer to “enforce a pre-employment drug testing policy, zero-tolerance drug testing policy, random drug testing policy, or drug-free workplace policy.” While the bill allows employers to establish limitations to drug usage, no adverse action against an employee may be taken for violating these policies, unless the drug usage amounts to the impermissible limit established by the state’s DUI provision defining impairment. Only if the employee falls within this threshold may an employer take disciplinary action.

Currently, while marijuana usage is legally permitted for individuals above the age of 21, employers can terminate employees based on such usage. The proposed law, however, would prohibit such termination and would likely have a significant impact on an employer’s ability to take disciplinary action surrounding cannabis usage. Importantly, the proposed legislation would not apply to businesses that have federal connections, since THC and marijuana usage remains illegal at a federal level.

As of now, there proves no reason for immediate concern, as the bill currently sits with the Rules Committee after the House conducted a first reading.

If you have any questions or concerns surrounding cannabis usage at the workplace or any other issues related to employment law, reach out to the qualified staff at Rock Fusco & Connelly LLC.