Illinois Legislature Clarifies Employer Liability Below Cannabis Act

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As numerous of our readers know, this summer time Illinois enacted legislation legalizing recreational marijuana, helpful January 1, 2020. Though this legislation was no doubt welcome news to numerous in the cannabis market, it left numerous Illinois employers uncertain as to how cannabis ought to be treated in the workplace. On the other hand, in the course of the current legislative session, the Illinois Common Assembly passed an amendment to the recreational cannabis law that considerably clarifies what Illinois employers can and can’t do beneath the new law. 

The Illinois recreational cannabis law enables employers to make and enforce “reasonable zero tolerance or drug free of charge workplace polices regarding drug testing, smoking, consumption, storage, or use of cannabis in the workplace or when on get in touch with supplied that the policy is applied in a nondiscriminatory manner.” 410 ILCS 705/10-50(a). The cannabis law additional enables Illinois employers to discipline or terminate an employee primarily based upon violation of its workplace drug policies. 

However at the identical time, the legislature amended the Illinois Appropriate to Privacy in the Workplace Act to avoid employers from discriminating against workers for their use of “lawful products” when off-duty. Cleverly, the legislature defined “lawful products” as these that are lawful beneath state law – to encompass recreational marijuana

So, on the a single hand the legislature appeared to grant Illinois employers the capacity to institute or retain zero-tolerance cannabis policies, which includes drug testing policies, and terminate or discipline workers for violating them. But on the other hand, the legislature restricted employers’ capacity to discipline or terminate workers for off-duty use of cannabis merchandise. 

In response to the issues raised by the Illinois business enterprise neighborhood regarding this important conflict in the original text of the recreational cannabis law, the Illinois legislature not too long ago amended the law in an try to address this tension. As amended, the law would now state:

Absolutely nothing in this Act shall be construed to make or imply a lead to of action for any particular person against an employer for:

(1) actions taken pursuant to an employer’s affordable workplace drug policy, which includes but not restricted to subjecting an employee or applicant to affordable drug and alcohol testing, affordable and non-discriminatory random drug testing, and discipline, termination of employment or withdrawal of a job provide due to a failure of a drug test. SB 1577, sec. 705/10-50(e)(1) 

Illinois firms will no doubt welcome this amendment. On its face, it seems to enable employers to continue pre-employment drug testing constant with current policies, and enable employers to withdraw presents of employment primarily based upon a optimistic test. Additional, the amendment will enable employers to discipline or terminate workers primarily based upon random drug testing, supplied it is non-discriminatory. In other words, in light of this amendment, Illinois employers who presently retain a zero-tolerance drug policy via drug testing may perhaps continue this practice. 

Importantly, having said that, the amendment does not do away with the “good faith belief” requirement. So, employers looking for to discipline or terminate an employee primarily based upon affordable suspicion that they are impaired in the workplace ought to nevertheless make sure that they can articulate the basis of their suspicion constant with the “good faith belief” requirement in the statute. 

It is important to emphasize that only employers with a drug testing policy in spot can lawfully take such actions. As a outcome, it will be essential for employers with policies to critique their policies and make sure that they are compliant. Employers who do not have workplace drug policies may perhaps contemplate building and implementing such policies prior to the New Year.

Governor Pritzker has 60 days to sign or veto the bill. If the governor requires no action inside that time, the amendment will automatically come to be law. 

 

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