On December 4, 2019, Governor J.B. Pritzker signed legislation amending the Cannabis Regulation and Tax Act (Cannabis Act) commonly known as the Recreational Marijuana Law.

The amendments seem to allow employers to test applicants or do random testing of employees for a positive result of marijuana and take action against such individuals on a “zero tolerance” policy.

Presumably, such a “zero tolerance” policy would not violate the Illinois Right to Privacy in the Workplace Act, based on the amendments to the Recreational Marijuana law:

Nothing in this law 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,
• Random drug testing – that is reasonable and non-discriminatory,
• Discipline, termination of employment, withdrawal of a job offer, due to a failed drug test.

Unfortunately, the amendments to the Recreational Marijuana law do not define a reasonable workplace drug policy; nor reasonable drug and alcohol testing; nor a failed drug test.

Based upon the above concerns and others, many Illinois employers are treating marijuana like alcohol as to prohibiting the use/possession and impairment in the workplace.

Clearly, Illinois employers must now carefully assess their Company drug and alcohol policy along with their testing providers as to what is considered a positive test for marijuana along with impairment per the protocol of their testing labs on THC levels.

NOTE: there may be practical considerations, problems, concerns, and issues with a “zero tolerance” policy on marijuana.

• Pre-Employment Testing of Applicants for marijuana may greatly reduce the job applicant pool. Some employers are removing testing for marijuana from pre-employment drug testing.
• Random Testing of Employees for marijuana may eliminate skilled employees who do not use or possess marijuana at work or report to work impaired by marijuana.
• Can you ask applicants if they use marijuana products on the employment application? Would that be an unreasonable drug policy? Same questions to Employee? Unreasonable? OK?
• Is medical marijuana an exception to the “zero tolerance” drug policy? Any other exceptions?
• How about secondary exposure to marijuana being smoked? How about CBD products?
• How about accidental exposure or use of marijuana products? Zero tolerance?

In the future, the above questions and concerns may be addressed by additional amendments to the law and/or court decisions.

If you have any questions or if you want your drug and alcohol policy reviewed, please contact Anthony J. Caruso, Jr., in our St. Charles office at (630) 377-1554 or by email at ancaruso@wesselssherman.com