On June 25, 2019, Governor J.B. Pritzker signed into law the Illinois Cannabis Regulation and Tax Act (Cannabis Act), effective January 1, 2020, making Illinois the 33rd state (including D.C.) to legalize marijuana for recreational or medicinal use. Illinois’ action demonstrates a growing trend to legalize some form of marijuana use and certainly highlights the growing conflict between federal and state laws. The trend particularly impacts employers, who are left to determine the extent to which they can continue to test for marijuana use and discipline employees for a positive test.
What You Need to Know
The Department of Transportation (DOT) regulations preempt any state law that is contrary to the federal regulations. Thus, drivers, mechanics, and other employees in “safety-sensitive positions” are still subject to random drug testing. Additionally, pursuant to the DOT regulations, no such person shall report for duty or remain on duty when that person uses any drug or substance identified in 21 CFR 1308.11, which includes marijuana. As such, even with the passage of the Cannabis Act and similar state provisions across the country, a failed random drug test will still support the termination of that employee.
However, as it relates to non-DOT regulated employees, a failed drug test may not be enough to support a termination of employment. For example, under the Cannabis Act, employers may adopt a reasonable zero tolerance or drug-free workplace policy concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call, provided that the policy is applied in a nondiscriminatory manner. While employers can prohibit employees from working while impaired, an employee who is found to have marijuana in their system while working may assert that the presence of the substance resulted from lawfully using marijuana in their free time and not at work.
Indeed, despite several early decisions confirming employer freedoms to discipline employees even for off-duty marijuana use, developing case law in some jurisdictions with statutes similar to Illinois’ Cannabis Act suggest that a failed drug test, for this reason, may not be sufficient to support a termination. Thus, employers would be best served to have other indicia of impairment to substantiate the need for a drug test and subsequent discipline.
The Illinois statute provides examples of impairment in the following section:
410 ILCS 705/10-50(d) An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee's performance of the duties or tasks of the employee's job position, including symptoms of the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others. If an employer elects to discipline an employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.
