Employment Law, Our Thoughts

2020 Illinois Law: Cannabis Regulation and Tax Act Amendments

Jan 6, 2020

Recent amendments to the Illinois Cannabis Regulation and Tax Act (410 ILCS 705/10-50) have made things a little clearer to employers in regards to employee drug testing and how to handle marijuana in the workplace. When the Act was originally approved, it was going to be illegal for employees to take any adverse action against employees or prospective employees for testing positive for marijuana in pre-employment drug testing or random drug testing. This forced employers to start taking action to change their drug policy and look for drug tests that did not include THC, one of the main chemicals in marijuana.

On December 4th, Governor Pritzker passed amendments to the marijuana law, clearing the fog on marijuana in the workplace for employers, and also clearing up discrepancies originally found in the Act. This amendment allows employers to maintain their zero-tolerance drug policies without breaking the law. Employers have full legal authority to enforce zero-tolerance policies including marijuana as long as policies are reasonable and nondiscriminatory. Random drug testing is also deemed lawful within this amendment as long as the random drug testing is nondiscriminatory and reasonable. This amendment also allows the employers to take disciplinary action against policy violators including termination of employment and the withdrawal of a job offer. However, the new provision does not define “reasonable” or provide any further clarification on the interplay between the Act and the Right to Privacy in the Workplace Act

There were initially concerns of these amendments conflicting with the Right to Privacy in the Workplace Act, which states that employers are not to discriminate or take disciplinary action against employees for the use of legal substances outside of the workplace. Seeing as the above Act deemed marijuana as a legal substance, this raised some eyebrows. To combat this, The Right to Privacy in the Workplace Act has also been amended to note the Cannabis regulation and Tax Act amendments listed above are an exception to the Act.

Capture 2020 Illinois Law: Cannabis Regulation and Tax Act Amendments

These amendments were created with employers in mind. There were several points of concern found within the original act, but these changes have really helped both employees and employers know what exactly is lawful and what is not. It is essential that every business owner in Illinois be aware of these amendments to both the Cannabis Regulation and Tax Act and the Right to Privacy in the Workplace Act and have a plan of approach for when these issues arise.

Whether you decide to revise your drug testing, you may consider:

  • Types of drug tests and corresponding action imposed upon policy violation
  • Safety- sensitive positions to determine what is most likely considered “reasonable” for random drug testing
  • Implement a checklist for reasonable suspicion… Download ours here!

The Right to Privacy in the Workplace Act can be viewed here.

The amendment to Cannabis Regulation and Tax Act can be found here. (410 ILCS 705 / 10-50)


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