In June of 2019, Illinois adopted the Illinois Cannabis Regulation and Tax Act which legalized the recreational use of marijuana.[1] This law became effective January 1, 2020 and employers are unsure how this new law will affect businesses and under which circumstances drug testing can be administered to current employees for reasonable suspicion or post-accident testing determinations.  The Illinois statute maintained an employer’s right to implement a drug-free or zero-tolerance workplace policy and reduce employment liability.

The new law allows employers to conduct drug tests and take adverse action against an employee if the employer has a “good Faith belief” that the employee was impaired or under the influence at the workplace. “Good faith belief,” in common parlance, means having an honest reasonable belief that something is true. When applied to specific areas of the law, understanding which factors or elements contribute to “good faith belief” is vital to avoiding potential liability as an employer. This good faith belief can be defined or refined by both statute and case law.

The Illinois Cannabis Regulation and Tax Act states that a “good faith belief” is when an employee manifests one or more specific symptoms that minimize the employee’s performance at work or tasks. This “good faith belief” must be based on physical observation of the employee rather than test results alone. This requirement must be met before an employer can act against an employee who tests positive.

The statute provides examples of the following symptoms that can cause an employer to manifest a good faith belief:

• employee’s speech;
• physical dexterity;
• agility;
• coordination;
• demeanor;
• irrational;
• unusual behavior;
• negligence or carelessness in operating equipment or machinery;
• disregard for the safety of the employee or others;
• involvement in any accident that results in serious damage to equipment or property;
• disruption of a production or manufacturing process; or
• carelessness that results in any injury to the employee or others.[2]

One possible motivation for the Illinois legislature’s “good faith” requirement is employee privacy interests. The concern boils down to where, along the spectrum between employer safety and employee privacy interests, society believes the law should stand. Evidence of marijuana use can remain in an employee’s system for up to 30 days after actual impairment. Since actual impairment at work is the focus of the employer’s safety interest, rather than the mere presence of THC in the employee’s system, the Illinois law attempts to strike a balance by requiring a good faith belief of impairment before ordering a test and taking adverse action against employees testing positive. Employers in other states will be watching Illinois closely to see how the new requirement plays out. If successful, other state legislatures may soon follow-suit with this additional testing requirement as a fair balance between these two competing interests.

Even if the employee is not under the influence, the Illinois law guards employees against potential lawsuits as long as the employer’s actions are based on its good faith belief. This requirement can easily be complied with by implementing proper training and procedures. Training supervisors and employees on how to recognize signs of marijuana impairment and creating a reporting procedure and documentation of these observations would likely be the best measure for employers to take to ensure that they are following the new marijuana statute. Additionally, the law provides that employers must permit employees who are being tested under the “good faith belief” basis be given a reasonable opportunity to contest the basis for being deemed under the influence. This means that employees can provide additional information that could explain his/her symptoms in order to rebut an impairment claim.

Enactment of the legalization of recreational marijuana in Illinois does not mean that employees can show up to work high.  If an employer bases a reasonable suspicion test on good faith belief, all observations should be recorded and maintained in the event an employee challenges the “good faith belief” requirement. The good faith requirement prevents the punishment of employees who participate in off-duty recreational marijuana usage. Even so, the statute provides liability protection to employers who follow the law; therefore, employers should take advantage of this change by updating their policies and reinforcing their drug-free workplace policies with their employees. Illinois courts have yet to have a chance to confront potential issues that may arise. Regardless, employers should effectively communicate any changes in their drug testing policies to employees to ensure there is no confusion regarding the new law.

End notes:

[1] Illinois Cannabis Regulation and Tax Act, 410 Ill. Comp. Stat. Ann. 705/1-1 (2020). [2] See 410 Ill. Comp. Stat. Ann. 705/10-50