Drug Testing in the Workplace & the Legalization of Marijuana

September 19, 2019

In 2014, Illinois was the 20th state to legalize medical marijuana. Fast forward to 2020 and it will be the 11th state to legalize recreational marijuana. Starting January 1st, that means that recreational possession and sales will be legal for adults 21 years of age and older. Similar to Colorado and other states where marijuana is legal, residents will have more buying power than visitors and tourists when it comes to marijuana purchases. Individual cities and counties can opt to prevent sales but not possession. Homegrown marijuana will be legal only for medical use and previous convictions and arrests for marijuana will be lifted. Any person, business, or landlord can prohibit the use on private property. Illinois colleges and universities will also be allowed to ban marijuana use.

But, what does all of this mean for employment laws and drug testing in the workplace?


It’s Complicated

The short answer is, that nobody can answer that question with any certainty yet. First and foremost, employers will need to update their drug testing policies as the laws change and neglecting to do so could lead to problems down the road.

The federal government maintains its legislation that marijuana is a Schedule 1 drug and it will likely remain illegal, at minimum, through the end of our current presidency.

From EHS Today,

The ADA explicitly exempts from its scope the “illegal use of drugs” and defines that term to include any substances that are unlawful under the federal Controlled Substances Act, which still lists marijuana as a banned substance. As a result, employers can terminate an employee who tests positive for marijuana—even if that employee is disabled, prescribed medical marijuana and only uses marijuana on his or her own time—and avoid risking liability under the ADA.

“Note, however, that under the ADA, if an employee discloses a disability and requests an accommodation, an employer is required to consider reasonable accommodations, which could include transfer to a non-safety sensitive job (where the marijuana use may not pose a safety concern) or temporary leave during treatment,” Selman and Thrasher warn.

On the flip side, employers desperate to find employees due to low unemployment and a booming economy may consider lifting THC from their pre-employment screening policies. If the employer feels that employees who use marijuana off the job do not present a safety risk – just as those who consume alcohol off the job – then those employers might also feel that urine testing is a punishment for behavior outside of the workplace. It’s really up to each individual employer except in cases of the federal government and positions such as airline pilots and truck drivers. While some employers might turn a blind eye so long as employees can still do their jobs, many companies feel marijuana, illegal or legal, is not conducive to a safe working environment, and companies have the right to expect all employees to perform their jobs safely.


To Each Their Own

The Chicago Tribune’s take is that “if rules surrounding medical marijuana are any indication, Illinois employees won’t necessarily be free to get stoned, even in their free time, once recreational marijuana becomes legal. Illinois law bars employers from discriminating against employees for using legal products outside the workplace. But employers still have the right to have drug-free workplace policies, require drug testing, and to take action against employees who violate those policies, said Stephanie Dodge Gournis, a partner at Drinker Biddle & Reath who works in Chicago.” And, it seems the same would be true for surrounding states that employ people from Illinois.

The important thing to iterate is that employers update their drug testing policies as the laws change. Neglecting to face legal changes could lead to problems down the road for those employers that fail to stay current.

As we navigate this new landscape, we encourage you to have conversations with fellow business owners, your local chambers, HR professionals, and lawyers about your current policy and the new laws. Keep in mind that we conduct drug testing and background checks for employers across the country. Contact us for more information.