By Condon McGlothlen, Marc Jacobs, and Adam R. Young

Seyfarth Synopsis:  Earlier this month, Governor Pritzker signed into law SB 1557, revising the Recreational Cannabis Law to expand permissible marijuana testing and related adverse action.

The Original Legalization Bill As Enacted

The Illinois Cannabis Regulation and Tax Act (410 ILCS 705) (the “Legalization Act”) legalizes recreational cannabis for Illinois adults starting January 1, 2020. The Legalization Act specifically allows Illinois employers to enforce “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.” The Act also permits employers to prohibit employees from being under the influence of or using cannabis in the employer’s workplace or while on call. Further, the Act (i) allows employers to discipline or terminate an employee who violates the employer’s workplace drug policy, and (ii) specifically insulates employers from liability for disciplining or terminating employees based on the employer’s good faith belief that the employee was either impaired at work (as a result of using cannabis) or under the influence of cannabis while at work.

However, when the Legalization Act was passed in November, it threatened to increase exposure for Illinois employers who test for marijuana and act on a positive test result. First, the Legalization Act created a potential cause of action for applicants who test positive for marijuana at the post-offer, pre-employment stage, and are therefore rejected for hire. The Act expressly amended the Illinois Right to Privacy in the Workplace Act, which prohibits discrimination against employees for their use of “lawful products” outside of work (defined as lawful products under state law), to include cannabis and marijuana. Because applicants have not started working, applicant testing could only detect marijuana use outside the workplace. Return-to-duty drug testing raised similar issues, typically detecting off duty drug use during a leave.

Second, employers who test current employees, e.g., post-accident or based on reasonable suspicion, faced new exposure if a discharged employee claimed the employer lacked a “good faith belief” that the employee had been impaired by or under the influence of cannabis.  For example, if the employer discharged some employees who tested positive but not others, a discharged employee could claim the employer lacked a “good faith belief” regarding impairment. Alternatively, because there currently is no legally or medically accepted definition of what constitutes “impairment” (or being “under the influence” of marijuana), the former employee could assert: (i) he or she was not in fact impaired at work; (ii) a positive test result alone cannot prove otherwise; and (iii) the employer still acted based solely on the test result, thus showing it lacked a good faith belief regarding the employee’s impairment.

Eleventh Hour Amendments Protect Employer Drug Testing

With the January 1, 2020 deadline approaching, Illinois business community representatives raised numerous concerns with lawmakers and proposed revising the Act to clarify permissible drug testing and limit possible causes of action against employers. On December 4, 2019, Governor Pritzker signed amendments into law that (among other things) provide:

Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for:

(1) 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 nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.

P.A. 101-0593, Sec. 705-10(50)(e)(1). This new provision is separate from the Act’s safe harbor for decisions based on the employer’s good faith belief that an employee was impaired or under the influence of marijuana while performing his or her job duties.

With regard to pre-employment, post-offer testing, the Legalization Act amendments seemingly eliminate employer liability for revoking an offer due to a positive marijuana result. The Legalization Act as amended explicitly permits “withdrawal of a job offer due to a failure of a drug test.” Section 705-10(50)(e)(1). Potential employer liability under the Right to Privacy in the Workplace Act for rejecting applicants who test marijuana-positive also effectively has been eliminated. While the original law amended the Privacy in the Workplace Act to permit discrimination claims founded on the use of “lawful products” (e.g. cannabis) outside work, the Privacy in the Workplace Act specifically invokes 705-10(50)(e)(1) of the Legalization Act. With that section amended, Privacy in the Workplace Act claims related to marijuana testing should no longer be viable.

For post-accident, random, or other forms of current employee testing, the amended Legalization Act better protects employer interests by expressly limiting causes of action based on discipline or termination on account of a failed drug test. However, the statute still contains language regarding an employer’s “good faith belief”. Employees may therefore still pursue litigation alleging such a belief is required for lawful termination, and that the employer lacked this requisite belief in discharging the individual.

Employer Takeaways

Given imminent cannabis legalization, many Illinois employers are presently updating their policies and procedures.  Other states’ experience suggests Illinois employers may soon confront increased recreational marijuana usage, as well as additional workplace marijuana possession, use, and impairment.  Employers should consult outside counsel for help in revising policies and addressing new marijuana challenges in the workplace.

Medical marijuana developments present another set of challenges for employers in many states, Illinois included. Those issues are not impacted by the Legalization Act as amended.

The Illinois amendments both clarify and expand employer options by comparison with the original Legalization Act. Fundamental questions remain across the country, however, about how employers should view marijuana and its effect on work. Is widespread marijuana use in one form or another inevitable, in which case should employers continue investing the time, effort, and expense associated with rigorous pre-employment and employee testing efforts? Or is that question misguided because it ignores employer needs (safety and productivity among others) to test for other drugs no matter what happens with marijuana-related developments? Either way, recent marijuana developments and related uncertainty about developments to come are forcing companies to re-think when to test, whom to test (what positions or job categories), what to test for, and how to make sure decisions based on test results comply with the varied but generally expanding protections for both recreational and medical marijuana use.

In a sense, Illinois employers caught a break with the Legalization Act amendments —  a break not only from the original Legalization Act, but also from a larger state law trend towards always requiring employers to prove impairment to justify adverse action based on marijuana use. This follows from the widely recognized view that  a marijuana-positive result by itself says virtually nothing about impairment at work. Though it may no longer be required in Illinois, a best practice for employers who test current employees for marijuana is to establish a strong record of impairment independent of a marijuana-positive result. That would include thorough, contemporaneous documentation of the reasons employees are sent for reasonable suspicion testing. It could include an accident investigation report that rules out non-drug-related causes where circumstances warrant that conclusion.

Marijuana testing may remain a valuable tool for helping employers maximize productivity, reduce turnover, and avoid workplace accidents and injuries. But it is only one tool, and one met with skepticism if not outright antipathy in a growing number of jurisdictions. For now, Illinois is no longer among those. In this uniquely evolving area (many would say industry), however, change is the only agreed upon constant.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA), or Cannabis Law Practice Team, or the Employment Law Practice Group.