The Latest on Illinois Employment Drug Testing

by The True Negative

What does this have to do with the Right to Privacy in the Workplace Act?
The Right to Privacy in the Workplace Act prohibits employees from discriminating against workers using “lawful products” outside of the workplace and outside of working hours. Because weed is now legal in Illinois, employers cannot penalize workers in any way for consuming weed outside of the workplace and outside of working hours. As a reminder, weed is not legal at the federal level.

Can employers still drug test?
Yes, employers can still drug test workers under the following circumstances:
• The place of employment is a federal government work place or is a company that must comply with federal regulation
• An employee is “on call” (i.e. on standby to work)
• An employer has reasonable suspicion to believe that an employee is impaired by weed on-the-job

How exactly does this law make the distinction between weed usage on vs off the job?
The law gives employers the discretion to drug test employees who are showing symptoms identified as being consistent with impairment due to weed:
• Slurred speech
• Poor physical dexterity
• Poor coordination
• Lessened agility
• Change of demeanor
• Irrational or unusual behavior
• Negligence or carelessness in operating machinery or equipment
• Involvement in any accident that results in serious damage to equipment or property
• Disregard for the safety of the employee or others
• Disruption of a production or manufacturing process
• Carelessness that results in any injury to the employee or others

How can employers tell whether an employee used weed *on the job?*
No clue! As our drug testing time table shows, weed can stay in your system long after usage, especially for frequent users. Marijuana breathalyzers are in development, but we are not aware of any companies that use them to drug test employees.

Can you be fired for testing positive for weed?
Yes, if an employer has a zero-tolerance workplace policy and your drug test suggests your on-the-job performance has been impaired by weed, you can be fired.

Can you be fired for testing positive for weed if you have a medical card?
Yes. Again, if an employer has a zero-tolerance workplace policy and your drug test suggests your on-the-job performance has been impaired by weed, you can be fired.

In summary, this law aims to treat weed like alcohol. Most employers don’t care if you drink on your own time outside of work, but they do care if you show up to work drunk. However, as you can see, there is a lot of gray area in this law and proving that an employee is impaired by weed on-the-job sounds murky. Whether this law tips in favor of employers or employees hinges on whether employers act in good faith in determining whether an employee should be subject to a drug test. Otherwise, given the vagueness of the symptoms employers will use to identify impaired workers, Illinois employees should be asking themselves: will I be subject to a drug test because I came to work tired?

For those of you who are concerned about pre-employment drug testing, this is a clear win since this essentially abolishes scheduled drug testing for the majority of workplaces.

Until weed is removed from panel drug tests, it’s best to be prepared. Help bring transparency to employment drug testing by taking two minutes to submit information on your drug testing experience here.


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