In June 2019, the Illinois’ Cannabis Regulation and Tax Act (HR1438) (“Cannabis Act”) was signed into law, legalizing the use and possession of recreational cannabis for adults age 21 or older beginning January 1, 2020. In a previous Labor Days blog post, we discussed the likely impact of this law on employers in Illinois. In short, the Cannabis Act (1) permits employers to establish non-discriminatory, “reasonable zero tolerance or drug free workplace policies” that prohibit employees from using or being under the influence of cannabis at work, (2) allows employers to discipline employees for using or being under the influence of cannabis at work and for other violations of these “reasonable zero tolerance or drug free workplace policies,” and (3) insulates employers against liability for taking the aforementioned actions, as long as there existed a good faith basis for the employer to believe that the disciplined employee was under the influence of cannabis. Cannabis Act at § 10-50.
Despite these provisions, the Cannabis Act, as originally enacted, left employers with several unanswered questions. One of the key questions was whether employers would face liability for adverse employment actions based solely on a positive marijuana test, including refusing to hire a job applicant who tests positive for marijuana use. The challenge with testing employees and prospective employees for marijuana use is that under Illinois’s Right to Privacy in the Workplace Act, an employer may not discriminate against an individual who uses “lawful products off the premises of the employer during nonworking and non-call hours.” 820 ILCS 55/5(a). Adding to the confusion is the fact that the Right to Privacy in the Workplace Act referred back to the Cannabis Act’s provisions allowing employers to enforce reasonable drug-free workplace provisions.