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Can Illinois Employers Still Drug Test for Marijuana in 2020?

Updated on
October 28, 2019
Article written by
Attorney 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 would like 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.  There is nothing in the Cannabis Regulation and Tax Act that 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 so chooses.  The Cannabis Act does not contain anything that will govern any business’s drug policy or how they choose to discipline employees in violation of 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, but 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 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

If an employer claims to have seen a display of any of the aforementioned symptoms 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.

Can Illinois Employers Still Drug Test for Marijuana in 2020?
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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