Recent Amendment to Illinois Cannabis Act Helps to Provide Clarification to Employers

February 11, 2020

When the Illinois legislature enacted legislation to legalize recreational marijuana effective January 1, 2020, employers were left with uncertainty as to how they could create and enforce reasonable zero tolerance or drug free workplace policies. The dilemma was that the Illinois Right to Privacy in the Workplace Act prevented employers from discriminating against employees for their use of “lawful products” while off-duty which contradicted the new, recreational cannabis law.

In an attempt to answer this question, the Illinois legislature recently amended the recreational cannabis law.  As amended, the law now reads:

“Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and non-discriminatory random drug testing, and discipline, termination of employment or withdrawal of a job offer due to failure of a drug test.”

The amendment appears to allow employers to continue pre-employment drug testing consistent with existing policies and to withdraw offers of employment based on a positive drug test. Therefore, Illinois employers who currently maintain a zero-tolerance drug policy through drug testing may continue this practice.

Although the amendment provides clarity to employers, it is important to note that only employers with drug testing policies in place on January 1, 2020 can lawfully take action against an employee’s cannabis use.

If your business has a workplace drug policy in place and you are concerned it may not conform with the new recreational marijuana laws contact the business law attorneys at Rock Fusco & Connelly, LLC.