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Kevin O'Flaherty

In this article, we answer the question, “can employers still drug test for marijuana in 2020?”. We also answer, “when will recreational marijuana use be legalized in Illinois?”, “will employers still test for marijuana in drug tests once recreational marijuana is legalized in Illinois?”, “can you be fired for testing positive for marijuana once recreational use is legal in Illinois?”, “can you be fired for testing positive for marijuana if you have a medical card?” and “can my employer require a random drug test if they never have before?”.

When Will Recreational Marijuana Use Be Legalized in Illinois?

Medicinal marijuana is already legal in Illinois, but the law will change to include recreational use as of January 1st, 2020. If you want to learn more about the changes going into effect, see our article entitled New Illinois Law Legalizing Marijuana in 2020 Frequently Asked Questions.

Will Employers Still Test for Marijuana in Drug Tests Once Recreational Marijuana is Legalized in Illinois?

Whether or not an employer includes marijuana in drug tests is at the discretion of each employer. Nothing in the Cannabis Regulation and Tax Act requires an employer to stop testing for marijuana.

Can You Be Fired for Testing Positive for Marijuana Once Recreational Use is Legal in Illinois?

Yes. An employer’s zero-tolerance or drug-free workplace policy can remain the same if the employer chooses. The Cannabis Act does not contain anything that will govern any business’s drug policy or how they choose to discipline employees violating that policy. Certain employers may decide to stop testing for marijuana in drug tests, but this will vary from business to business.

Can You Be Fired for Testing Positive for Marijuana if You Have a Medical Card?

Yes, you can be fired for failing a drug test, even if you use it for medicinal purposes. You may have a medical card for legal usage of marijuana at home. However, you can still be held accountable if the business you work for has a strict policy against all drug usage. Make sure you understand your employer’s drug policy in order to avoid any potential conflicts.

Can My Employer Require a Random Drug Test if They Never Have Before?

Unless entry drug testing or random drug testing is part of a company’s policy, and employees and new hires are aware of this policy, you cannot be required to take a drug test without a good faith belief that you exhibit articulable symptoms of being impaired and/or under the influence of drugs or alcohol. Symptoms indicating a decreased or lessened performance of the employee’s duties or tasks of their position include:

  • 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 an 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

If an employer claims to have seen a display of any of the symptoms mentioned above and elects to discipline an employee on these grounds, the employee must be allowed a reasonable opportunity to contest the basis of the determination. It is a very subjective policy that will vary widely between employers. Talk to one of our experienced Illinois employment attorneys to learn how O'Flaherty Law can help you.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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