GOVERNOR ENACTS “EMPLOYER FRIENDLY” AMENDMENT CANNABIS ACT
GOVERNOR ENACTS “EMPLOYER FRIENDLY” AMENDMENT TO CANNABIS ACT
On December 4, 2019, Governor Pritzker signed legislation into law as Public Act 101-0593 adding language to what is commonly known as the Cannabis Act so that it now states:
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 to 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.
What does Cannabis Act Amendment mean for your Drug Testing Policies?
The key addition here is the language “or withdrawal of a job offer due to a failure of a drug test”. This seems to say that you can withdraw an offer from a potential employee if their pre-employment drug test shows evidence of Cannabis in his or her system. But note the statute still says the employer’s workplace drug policy must be “reasonable”. If cannabis is legal, in what situations is it “reasonable” to refuse to hire someone just by having it in their system?
Years ago the legislature passed the Right to Privacy in the Workplace Act. This Act essentially said that it is unlawful for an employer to refuse to hire any individual because the individual uses lawful products off the premises of the employer during nonworking and non-call hours. However, at the time of the passage of the Cannabis Act, the Right to Privacy in the Workplace Act was also amended to add:
Sec. 5. Discrimination for use of lawful products prohibited.
(a) Except as otherwise specifically provided by law, including Section 10-50 of the Cannabis Regulation and Tax Act, and except as provided in subsections (b) and (c) of this Section, it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking and non-call hours.
Amendment to Cannabis Act requires Reasonable Drug Testing Policies
The two statutes taken together seem to make it clear that you can deny a prospective employee a job simply because you have a positive cannabis result on a pre employment drug test. But go back to that pesky “reasonable workplace drug policy”. Until we understand what “reasonable’ means here, proceed with caution.
Cannabis Act Amendment requires Non-Discriminatory application of Drug Testing Policies
Also note that many of the publicity around the law discusses the lawmaker’s emphasis that legalization is centered on racial equity.
“Illinois’ historic cannabis law puts social equity above all else, and the result will be a market unlike that in any state in the nation – one that rights the wrongs of the past by offering new opportunity to communities that have been torn apart,” said Esther Franco-Payne, executive director of Cabrini Green Legal Aid, where Pritzker signed the bill in Chicago. “From ownership to jobs to expungement, disproportionately impacted communities will be revitalized when this law takes effect on January 1 and as the industry flourishes in the years to come.”
So let’s look back at the statute. Not only must the policy be “reasonable” but generally the application of any policy must be non-discriminatory. How will that play into the issue of withdrawing offers due to positive cannabis results?
It may take years for these laws to work their way through the court system and give us a clear answer on how to proceed. But be assured there are cannabis lobbying organizations out there just waiting to test this law and see how far it can be stretched. Unless you want to be that test case – be sure to consult your attorney before you put a policy in place where you may withdraw an offer due to the existence of cannabis in a candidate’s system.
“It’s new territory, we’re seeing that in some of the cleanup that we’re doing in this bill,” said Sen. Heather Steans, D-Chicago, who sponsored the initial marijuana legalization measure.
Steans also said while the follow-up measure, referred to as a trailer bill, was mainly about technical changes, more substantial changes could happen in the future.
“We did not want to go back and revisit policy at this point in time,” she said. “We know we may do that going forward but we want to first get this up and running and see how it actually works.”
Pritzker recently said the phased rollout of cannabis legalization will provide for 75 new dispensary licenses in May, at which point more social equity applicants will have the opportunity to be part of the marijuana industry. He said the initial 30 licenses go to those already in the medical marijuana business that had been licensed in the previous administration.
The state will start accepting applications for new cannabis licenses, including from social equity applicants, on Tuesday, Dec. 10, through Thursday, Jan. 2. Information about licensing is available via the Illinois Department of Commerce and Economic Opportunity.
Should you have questions regarding the Cannabis Act Amendment or other legal needs for your business or would like to schedule a no-charge initial consultation to discuss questions you have, please contact Waltz, Palmer & Dawson, LLC at (847) 253-8800 or contact us online.
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