Governor JB Pritzker signed the Cannabis Regulation and Tax Act (Public Act 101-0027) on June 25, 2019. This Act legalizes public consumption and possession of cannabis for Illinois residents over 21 years of age allowing for lesser amounts to be possessed by non-residents. The Illinois Chamber has assembled resources to provide pertinent information relating to Illinois businesses.
With the January 1, 2020 effective date for recreational marijuana becoming lawful for adult use, there has been a great deal of speculation about the impact of Section 10-50 of PA 101-27 on Illinois employers. This section provides for workplace protections regarding employer zero tolerance, drug-free workplace and drug testing policies.
The negotiation process during the legislative consideration of legalizing marijuana did not result in perfect protections for employers. However, in several key areas we were able to obtain legislative intent that helps provide guidance for employers when reviewing their workplace policies regarding marijuana and drug testing. We have two WMA files that we are able to share by drop box, one from the Office of the Senate Secretary and the other from the House Clerk’s Office. The links are included in the text below.
In the Senate, Sen. Jason Barickman (R-Bloomington) asked the Senate sponsor, Sen. Heather Steans (D-Chicago) about the impact of the Right to Privacy in the Workplace Acton employer drug testing policies. Specifically he asked (found at 25:38 to 26.51 on the Senate debate file): https://www.dropbox.com/s/cb8m8d331g3qcnr/5-29-19%20HB1438.wma?dl=0
“The Right to Privacy in the Workplace Act provides that an employer is restricted from applying its employment policies to “lawful products” away from the workplace. The changes being made to the Act are:
To clarify the purpose of the second exception…is this addition of the reference to Section 10-50 meant to allow employers who provide a zero tolerance or drugfree workplace policy to implement and enforce their policy without fear of violating the Right to Privacy in the Workplace Act?”
Sen. Steans response: “Yes”.
There also have been questions and concerns raised that the medicinal marijuana law (Compassionate Use of Medical Cannabis Program Act) is not referred to as an exemption from the Right to Privacy in the Workplace Act as the recreational law is. It should be noted that changes enacted to the Compassionate Use of Medical Cannabis Program Act (PA-101-363) included new Section 173 which provides “Conflicts of law. To the extent that any provision of this Act conflicts with any Act that allows the recreational use of cannabis, the provisions of that Act shall control.”
Sen. Steans also specifically explained in her opening remarks explaining the bill’s provisions that “employers can maintain zero tolerance drug policies” (found at 4:22 in the Senate debate file).
In the House, Rep. David Welter (R-Morris) sought clarification of the use of random testing by employers. He asked the House sponsor, Rep. Kelly Cassidy (D-Chicago) (found at 16:30 to 17:00): https://www.dropbox.com/sh/oodlktxpuaemw6u/AABP9fXwOVXkk6tfdiRdHNiIa?dl=0
“Representative Cassidy, for the purpose of legislative intent I’d like to ask you a question. Are actions of discipline or termination of an employee by an employer for failing a drug test, including a random drug test, protected from litigation under this law?”
Rep. Cassidy: “Yes.”
Rep. Cassidy also noted in her opening remarks that the legislation, “allows employers to adopt reasonable zero tolerance policies concerning consumption of cannabis” (found at 2:30 to 2:38 of the House debate file). In addition, she states, “we have assured that language for employers has been strengthened” (found at 5:27-5:30 in the House debate file).
We continue to work on legislative clarifications to Section 10-50 to including:
1) Clarifying that an employer has the ability to take disciplinary action against applicants for failing a pre-employment drug test and against employees for failing a random drug test;
2) Clarifying that if the employer has a zero tolerance, drug-free workplace or drug testing policy, proof of impairment is not needed to allow the employer to take disciplinary action;
3) Clarifying that employers may continue to take disciplinary action when an employee who is a medical marijuana cardholder violates an employer’s drug-testing policy; and
4) Clarifying that the Act does not interfere with any collective bargaining agreements.
We are seeking inclusion of these issues in a potential “trailer” bill during the upcoming Veto Session.
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Workplace Protections Clarified: Last night, the Illinois Chamber reached an agreement that addresses several key issues of legislative intent the Illinois Chamber sought to be codified. The language below is what was agreed to. It clarifies several key issues for employers and protects from litigation actions taken by an employer for random drug testing, preemployment testing and for failure of a drug test. It clears up the concern that an employer might have to prove impairment when an employee fails a drug test. An employer still will need its drug and alcohol policy to meet the standards of reasonableness and non-discrimination which means we are not totally out of the litigation woods. However, these changes provide greater clarity and protections to employers that need and want safe employees, safe workplaces and a safe public.
While we were unable to secure exemption of the medicinal marijuana law from the Privacy in the Workplace Act, we have commitments from the legislative sponsors and the Governor’s Office that the issue will be dealt with next session.
We are now working to help secure votes in support of the trailer bill. No bill number has yet been identified as the vehicle for the trailer amendment.
Section 10-50(e) 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, under the employer's workplace drug policy, including an employee's refusal to be tested or to cooperate in testing procedures or and discipline,ing or termination of employment, or withdrawal of a job offer due to a failure of a drug test;
(2) actions based on the employer's good faith belief that an employee used or possessed cannabis in the employer's workplace or while performing the employee's job duties or while on call in violation of the employer's employment policies;
(32) actions, including discipline or termination of employment, based on the employer's good faith belief that an employee was impaired as a result of the use of cannabis, or under the influence of cannabis, while at the employer's workplace or while performing the employee's job duties or while on call in violation of the employer's workplace drug policy; or
(43) injury, loss, or liability to a third party if the employer neither knew nor had reason to know that the employee was impaired.