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Governor Pritzker has signed an amendment to Illinois’ Cannabis Regulation and Tax Act (the new recreational marijuana law), and – in so doing – has effectively expanded employers’ rights to drug test and discipline for marijuana use.
First, public employers may now prohibit/discipline officers, paramedics, and firefighters from/for using and possessing marijuana when they are off-duty. The previous language merely prohibited on-duty use and possession. Second, the amendment provides that all employers (both public and private) may subject employees to random drug testing and may also subject applicants to pre-employment testing for marijuana, in addition to testing employees based on an employers’ “good faith belief” of impairment (i.e., post accident, reasonable suspicion, etc.). Employers may then discipline/terminate/not hire an employee or applicant for failing any such test.
In sum, employers do not need to observe impairment prior to testing (or subsequently disciplining) for marijuana use. However, remember that all drug tests and discipline following failed drug tests must continue to be administered via employers’ reasonable and non-discriminatory drug policies. Thus, in addition to having a drug policy in place, employers should regularly review those policies to ensure the content remains reasonable.
Nicole D. Meyer | Davis & Campbell, L.L.C.
401 Main Street, Suite 1600 | Peoria, IL 61602
(309) 673-1681 | Fax: (309) 673-1690
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