Illinois: Employers Have the Right to Enforce Zero-Tolerance Marijuana Policies
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APPLIES TO All Employers with employees in IL |
EFFECTIVE July 17, 2024 |
QUESTIONS? Contact HR On-Call |
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Discussion:
In White v. Timken Gears & Services, Inc., an employer had developed and implemented a Drug and Alcohol Policy that prohibited the unlawful manufacture, distribution, dispensation, possession, or use of controlled substances or alcohol in the workplace. The policy defined “controlled substances” to include marijuana. The employer also required employees at its manufacturing and distribution centers to undergo random drug screenings. The policy provided that an employee, upon a first-time positive test result, would be required to participate in counseling, stop using the substance for which they tested positive, and submit to unannounced follow-up testing. A second positive result would subject that employee to immediate termination of employment.
The plaintiff-employee tested positive for marijuana on a random drug test. He participated in the employer’s Employee Assistance Program and continued to work during that time; however, the employee again tested positive for marijuana during a subsequent random re-test. As a result, the employer terminated the employee’s employment citing his violation of the Drug and Alcohol Policy. Following his termination, the employee filed suit against the employer for allegedly violating the Illinois Right to Privacy in the Workplace Act (IRWPA).
The IRWPA prohibits an employer from firing an employee “because the individual uses lawful products off the premises of the employer during nonworking and non-call hours.” As of January 1, 2020, cannabis is a “lawful product” under the IRWPA. In defending the claim, the employer relied on the Illinois’s Cannabis Regulation and Tax Act (CRTA), which addresses employment and employer liability for conduct relating to the use of cannabis under state law. The CRTA specifically addresses what actions employers can take regarding cannabis-related violations, including authorization of employers to adopt two types of drug policies: “zero tolerance or drug free workplace policies” or “employment policies . . . concerning [conduct] in the workplace or while on call.” The CRTA also permits employers to discipline or discharge an employee for violating their “employment policies or workplace drug policy.”
In reviewing this case, the court concluded that employers may adopt a zero tolerance or drug free workplace policy; zero tolerance or drug free workplace policies need not be tied to ‘in the workplace’ conduct; such policies may be enforced through reasonable and nondiscriminatory random drug testing; and an employee may be terminated for violating the employer’s drug policy. Applying this to the case at hand, the court determined that the employer had adopted a permissible zero-tolerance policy that was enforced through random drug testing. Because the employee could not show that the employer’s actions were unreasonable or discriminatory, the court granted judgment in the employer’s favor.
Action Items
- Review drug and alcohol-related workplace policies for compliance.
- Consult with legal counsel on the enforcement of zero-tolerance and random drug testing policies.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2024 ManagEase