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Illinois Legislature Clarifies Employer Liability Under Cannabis Act

As many of our readers know, this summer Illinois enacted legislation legalizing recreational marijuana, effective January 1, 2020. While this legislation was no doubt welcome news to many in the cannabis industry, it left many Illinois employers uncertain as to how cannabis should be treated in the workplace. However, during the recent legislative session, the Illinois General Assembly passed an amendment to the recreational cannabis law that significantly clarifies what Illinois employers can and cannot do under the new law. 

The Illinois recreational cannabis law allows employers to create and enforce “reasonable zero tolerance or drug free workplace polices 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.” 410 ILCS 705/10-50(a). The cannabis law further allows Illinois employers to discipline or terminate an employee based upon violation of its workplace drug policies. 

Yet at the same time, the legislature amended the Illinois Right to Privacy in the Workplace Act to prevent employers from discriminating against employees for their use of “lawful products” while off-duty. Cleverly, the legislature defined “lawful products” as those that are lawful under state law – to encompass recreational marijuana. 

So, on the one hand the legislature appeared to grant Illinois employers the ability to institute or maintain zero-tolerance cannabis policies, including drug testing policies, and terminate or discipline employees for violating them. But on the other hand, the legislature limited employers’ ability to discipline or terminate employees for off-duty use of cannabis products. 

In response to the concerns raised by the Illinois business community concerning this significant conflict in the original text of the recreational cannabis law, the Illinois legislature recently amended the law in an attempt to address this tension. As amended, the law would now state:

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 non-discriminatory random drug testing, and discipline, termination of employment or withdrawal of a job offer due to a failure of a drug test. SB 1577, sec. 705/10-50(e)(1) 

Illinois businesses will no doubt welcome this amendment. On its face, it appears to allow employers to continue pre-employment drug testing consistent with existing policies, and allow employers to withdraw offers of employment based upon a positive test. Further, the amendment will allow employers to discipline or terminate employees based upon random drug testing, provided it is non-discriminatory. In other words, in light of this amendment, Illinois employers who currently maintain a zero-tolerance drug policy through drug testing may continue this practice. 

Importantly, however, the amendment does not eliminate the “good faith belief” requirement. So, employers seeking to discipline or terminate an employee based upon reasonable suspicion that they are impaired in the workplace should still ensure that they can articulate the basis of their suspicion consistent with the “good faith belief” requirement in the statute. 

It is critical to emphasize that only employers with a drug testing policy in place can lawfully take such actions. As a result, it will be important for employers with policies to review their policies and ensure that they are compliant. Employers who do not have workplace drug policies may consider creating and implementing such policies before the New Year.

Governor Pritzker has 60 days to sign or veto the bill. If the governor takes no action within that time, the amendment will automatically become law.

© 2019 BARNES & THORNBURG LLP

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About this Author

David B. Ritter Barnes Thornburg Law Firm Labor and Employment Law Attorney Chicago
Partner

David B. Ritter is a partner in the Chicago office of Barnes & Thornburg LLP. He is a member of the firm’s Labor & Employment Law Department and co-chairs the Logistics and Transportation Practice Group. He represents management nationwide in virtually all areas of labor and employment law, including employment discrimination and harassment claims, wage and hour disputes, non-compete, trade secret and restrictive covenants and employment torts.

With nearly 30 years of experience representing public and private companies, Mr. Ritter has...

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Peter J. Wozniak Barnes Thornburg Chicago  Labor Employment
Partner

Pete Wozniak is a vigorous advocate who strives to help his clients navigate issues that can be fraught with challenges as painlessly and efficiently as possible. He is a candid and personable counselor, offering his clients direct advice by leveraging his deep experience performing a broad range of outcome critical functions for complex labor and employment matters.

Pete represents clients across a number of industries, including transportation and logistics, restaurants, retail, manufacturing, and temporary staffing. Handling a number of high profile matters, he identifies the appropriate tools and techniques to reach the optimal resolution for the client in the matter at hand, always cognizant of how the matter fits into the client’s overall operations.

Pete partners with his clients to understand the ins and outs of their businesses, and to help ease the impacts that litigation may have on their operations. His holistic approach allows him to advise clients regarding approaches and resolutions that would be most favorable for their overall business, now and in the future. While striving to help clients minimize the disruptive impact of lawsuits on their operations, Pete understands the monetary costs of litigation, including the potentially-prohibitive costs of electronic discovery. Using that understanding, he provides counsel and litigation strategy to deploy the most efficient resources possible.

Among other areas, Pete defends employers throughout the United States in a variety of complex employment discrimination class actions and single plaintiff litigation, wage and hour class and collective actions and single plaintiff litigation, and Equal Employment Opportunity Commission (EEOC) litigation. His experience spans the entire spectrum of litigation, including pretrial investigation, settlement negotiation, fact and expert discovery, trial, and post-trial appeals.

Because the law and our society are ever-evolving – particularly as social media outreach continues to accelerate and expand – Pete keeps up-to-date on legal and social trends and employment-related rules, regulations and decisions, so he can best counsel his clients when the inevitable changes may have an impact their business, whether inside or outside the courtroom.

Before practicing law, Pete was a sergeant in the U.S. Army Reserve, serving as a logistician.

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Mark Wallin, Attorney, BT, Chicago, Labor Employment
Of Counsel

In order to provide the best counsel, Mark Wallin believes it is his role to understand his clients’ business needs so he can help them determine what resolution will provide the most benefit. His keen ability to understand his clients’ practical concerns allows him to advise on the best path to successfully resolve issues – whether through traditional litigation or negotiated resolution.

In the course of his practice, Mark has focused on providing the highest-level of service to his clients and building long-term relationships. Specifically, he defends employers in a wide range of...

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