In June, we reported that recreational marijuana will be legal in Illinois, effective January 1, 2020. Under the law, called the Legalization Act, employers may still require a drug free workplace and may still prohibit employees from being under the influence of marijuana in the workplace or while on call. The law also specifically mentioned the right of employers to discipline or terminate an employee who violates the workplace drug policy.
While the law was clear in some instances, it also created some ambiguity in terms of causes of action, potentially increasing exposure for Illinois employers who test for marijuana and act on a positive test result. As such, the Governor recently signed amendments to the Legalization Act into law. Those amendments provide, in part: “Nothing in this Act 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, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.”
This new provision is in addition to the safe harbor already provided in the law for decisions based on the employer’s good faith belief that an employee was impaired or under the influence of marijuana while performing his or her job duties.
While Illinois employers appear to benefit greatly from these amendments, it is prudent for them to remember that much ambiguity continues to revolve around the interpretation of marijuana laws throughout the country. Illinois employers should ensure they are following the amended version of the law, as they continue to revise their workplace drug testing policies prior to the January 1st effective date.
Click here for the full text of the Legalization Act, as amended.
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