The Cannabis Regulation and Tax Act signed into law in June 2019 left room for some confusion by employers who had drug policies prohibiting marijuana use. Because the Illinois Right To Privacy in the Workplace Act prohibits discrimination in the workplace because of an individual’s use of a “lawful product” off premises of the employer and during non-working hours, the Cannabis Act appeared to disallow employers from implementing zero tolerance or drug-free workplace policies that covered usage outside of the workplace.
On December 4, 2019, the Governor Pritzker signed Senate Bill 1557 into law. Under the new amendments to the Cannabis Act, employers may have workplace drug policies that allow for adverse actions against individuals who test positive for marijuana. Contrary to many so-called “experts” that are advising employers to stop testing for marijuana, informed employers can rest assured that their drug and alcohol testing programs can remain intact thanks to the passage and signing of the “Recreational Marijuana Workplace Protections Enhanced in Veto Session -PA 101-253 (Section 10-50 of the Cannabis Regulation and Tax Act)”.
It is business as usual for employers who have established zero-tolerance policies. They can continue to test for marijuana and not hire prospective employees who test positive.
Employers who have a zero-tolerance policy for marijuana and other drugs can continue to test for marijuana and other legal products such as alcohol. With recent amendment changes, this is now an allowable action employers may enforce.
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 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;
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; (Random testing and preemployment testing were specifically addressed as being protected.) Also adding actions related to failure of a drug test are critical to zero tolerance and drug-free workplace drug policies.
Finally, splitting former subsection (1) into two parts clarifies that employers with drug testing policies are not required to show use or possession in the workplace to have their action protected.
This was another important change to assure employers with reasonable and nondiscriminatory zero tolerance and drug-free workplace policies that their actions will be protected.
Quest Diagnostics Drug Testing Index 2018 (May 2019)
According to the Quest Diagnostics Drug Testing Index 2018, 4.2% of drug tests nationwide are positive for drug usage – the same level as 2016 – but a dramatic increase over the 3.5% positivity rate from 2012, which represented a thirty-year low since the inception of the DTI in 1988. These results reinforce the need for employers to refocus their efforts on creating Drug-Free Workplaces, as mandated by the Federal Government in 1988. The good news is that the positivity rate in Illinois is 3.9%, lower than that national average. However, in Central Illinois, the positivity rate is 5.5% – primarily due to the surge in methamphetamine and cocaine usage.
Impact of Recreational Marijuana on Workplace Drug and Alcohol Programs
There is no test for THC impairment like what exists for alcohol. Until such technology is developed, employers must rely on physician determination of impairment, which is based on a physical exam, along with results of drug testing. Illinois has adopted a 5 ng/ml per se limit on the concentration of THC found in the blood to indicate impairment. These limits have been criticized on both sides for being arbitrary and their potential to both incriminate those who are not impaired due to the persistence of THC in the bloodstream and to miss those who are impaired, since high levels of THC quickly leave the bloodstream before impairment subsides, which could take 48-72 hours after use.
Other Hot Topics for Employers
• CBD Oil and Commercial Driving
• National Federal Clearinghouse starting January 6, 2020
• Use of oral fluids testing in DOT drug testing programs…coming soon
• Over-the-counter and Prescription Medications That Can Affect Performance
What is CBD Anyway?
Cannabidiol (CBD) comes from one of two related forms of the cannabis plant: marijuana and hemp.
The main difference between the two is that marijuana has much more THC than hemp, and often more CBD, too. It’s also harder to extract CBD from hemp than marijuana.
CBD is Safe, Right?
• Cannabidiol, commonly called CBD, holds the promise of relieving a long list of ailments, from pain epilepsy, and multiple sclerosis.
• There are approximately 400 compounds found in cannabis. Along with delta-9-tetrahydrocannabinol (THC), there is also a second compound often being used these days for its medicinal effects: Cannabidiol (CBD).
• While CBD shares some structural similarities with THC, it does not produce a psychoactive “high”.
• Research around CBD is still in early phases, but some preliminary studies indicate that it may benefit medical and therapeutic issues such as seizures, neurological diseases, pain, cancer, inflammation, and mood disorders, including post-traumatic stress disorder (PTSD).
Federally-mandated drug tests do not consider the use of CBD or “medical marijuana” an alternative medical explanation for a positive test result. As a Schedule I substance, CBD still remains illegal federally, and this must be kept in mind for bus transit drivers. It is important to understand that CBD products are not the same quality and that CBD is not regulated by the FDA. A November 2017 study published in JAMA found that nearly 70 percent of all cannabidiol products sold online are either over or under labeled, causing potential serious harm to its consumers.