An Employer’s Guide to Illinois Cannabis Regulation– Not so Fast! “Zero Tolerance”​ may not mean zero tolerance.

As of January 1, Illinois employers have to deal with recreational cannabis, whether they like it or not.

While Illinois has been a relatively lax medical cannabis state for years, legalizing cannabis for recreational usage places it under the protection of the Illinois Right to Privacy in the Workplace Act, which makes it illegal for employers to discriminate against an employee or applicant for using a “lawful product” — like recreational cannabis. And while the Right to Privacy Act does carve out an exception for the Illinois Cannabis Regulation and Tax Act (“Cannabis Act”), this exception does not mean that cannabis users are not protected against discrimination by Illinois law.

The Illinois Cannabis Act does allow for employers to maintain a “zero tolerance” drug testing policy — but this does not mean that employees who test positive for THC (the active ingredient in cannabis) can be automatically discharged just because the employer’s drug testing policy says so…

…because under the Cannabis Act, only employers whose drug testing policies are “reasonable” are provided with (limited) protection from lawsuit…

…and because an employee can test positive for THC without being “impaired” or “under the influence”.

In other words, the courts could interpret “zero tolerance” to mean “zero tolerance for impairment” instead of “zero tolerance for THC”.

What’s an employer to do?

  1. Adopt a drug testing policy that focuses on “impairment” or being “under the influence”;
  2. Plainly and legally define what those terms mean;
  3. Train supervisors in recognizing and documenting impairment;
  4. Provide for due process with regard to the employee.

This article is the first in a 5-part series on “An Employer’s Guide to Illinois Cannabis Regulation”.

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