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On December 4, 2019, Governor Pritzker of Illinois signed Senate Bill 1557 (SB 1557, or the Bill), amending existing marijuana laws in the state. As of January 1, 2020, recreational marijuana sales will be permitted in Illinois, passed in June 2019 via the Cannabis Regulation and Tax Act (the Law). SB 1557 amends the Law in many regards, but of specific note has some amendments to workplace provisions that prove illuminating for employers. Although the Bill is effective immediately, it will not have a real impact until the Law goes into effect on January 1, 2020.
Of particular interest to private-sector employers, SB 1557 states that nothing in the Law creates or implies a cause of action against an employer for actions taken pursuant to a reasonable workplace drug testing policy.
The Bill further specifies that a reasonable workplace drug testing policy can include, but is not limited to, reasonable drug and alcohol testing for employees and applicants, reasonable and nondiscriminatory random drug testing, and the termination, discipline, or withdrawal of a job offer based on the failure of a drug test.
The Bill also contains specific language relating only to public employers. Specifically, public employers employing law enforcement officers, corrections officers, probation officers, paramedics, or firefighters are permitted to take disciplinary action for the consumption, possession, sales, purchase, or delivery of marijuana or marijuana-infused substances while on or off duty.
If any portion of the law is in contradiction with a collective bargaining agreement, the provisions of the bargaining agreement prevail.
Illinois became the eleventh state to legalize recreational marijuana in June 2019 via the Cannabis Regulation and Tax Act (the Law). Recreational sales begin January 1, 2020, and the Law requires certain changes to be made to workplace policies in order to be compliant.
For instance, nothing in the Law prohibits an employer from adopting a reasonable zero tolerance or drug-free workplace policy or from having a policy addressing drug testing, smoking marijuana, marijuana consumption, or marijuana storage in the workplace or while on-call provided that the policy is applied in a nondiscriminatory manner. The Bill provided further clarification as to what constitutes a reasonable workplace drug testing policy. Employers are not required to accommodate employees working while under the influence, using marijuana in the workplace, using marijuana while performing job duties, or using marijuana while on call.
Regarding discipline and/or termination of employment, the Law states:
"Nothing in this Act shall limit or prevent an employer from disciplining an employee or terminating employment of an employee for violating an employer's employment policies or workplace drug policy.”
Employers can discipline or terminate an employee for the violation of employment policies or a company drug-free workplace policy.
An employer may consider an employee to be under the influence if the employer has a “good faith belief” that the employee manifests specific articulable symptoms that decrease or lessen an employee’s performance of job tasks or duties. These symptoms are outlined in the Law as the following: speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment or machinery, disregard for safety of oneself or others, involvement in any accident that results in serious damage to equipment or property, production or manufacturing process disruption, and/or carelessness resulting in any injury to oneself or others.
Employees that are subject to discipline must be given a reasonable opportunity to contest the basis of the determination that the employee was under the influence/impaired. Additionally, an employer cannot discharge or otherwise disadvantage individuals because of their use of lawful products (including marijuana) during nonworking and non-call hours. This particular provision of the Law does not apply to the use of lawful products that impair an employee’s ability to perform an assigned duty. This will likely pose challenges for employers as they attempt to prove that a marijuana positive drug test correlates with impairment while at work.
Employers subject to federal, state, and/or local restrictions on employment such as DOT Part 40 are not required to comply with the Law if it would impact their ability to comply with such federal regulations, state laws, or cause the employer to lose a federal and or state contract and/or funding.
Nothing in the Law creates a cause of action against employers that perform reasonable drug and alcohol testing under their drug-free workplace policy. This includes if an employee refuses to be tested or refuses disciplinary procedures/termination efforts that were based upon the employer’s good faith belief that the employee used or possessed marijuana while in the workplace, performing job duties, or while on call if such acts are in violation with the company policy. This also includes if an employer disciplines or terminates an employee based on their good faith belief that the employee was impaired or under the influence of marijuana while at work, performing job duties, or while on call if such acts were in violation with the company policy. The Law also stipulates that nothing creates a cause of action against an employer if there was an injury, loss, or liability to a third-party if the employer did not know nor had reason to know that the employee in question was impaired by marijuana.
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