Since the start of the new year, employers in the state of Illinois have faced changes in the way that they navigate the pre-employment background check process through drug screening. Originally signed in June 2019 by Governor J.B. Pritzker, the Illinois Cannabis Regulation and Tax Act has not taken into effect until this year. With the substance now being legally accessible in the state, many employers have been unsure of their policy and course of action to take when they have any suspicion about one of their employees or even simply in the hiring processes.
Under the original rendition of the Act, employees and applicants with a previous conviction for marijuana possession can be sent for review by the Prisoner Review Board and then to Governor Pritzker for a potential pardon given the circumstances of the crime. The law does not allow the pardoning of records with violent charges attached or the distribution of cannabis alone. Charges for possession of fewer than 30 grams of marijuana were automatically expunged with more than 11,000 total charges being dropped before the end of last year. This would enable countless individuals to seek work they might have been previously barred from due to having a nonviolent misdemeanor attached to their record.
In many states where marijuana is legal, employers have adopted a “zero-tolerance” drug policy that falls more closely in line with federal law. While not the first, the state of Illinois is following the new trend of states who choose to enact laws where marijuana should not be a determining factor for employment decisions. While employers can adopt their own “zero-tolerance” policy, the degree of testing for the substance is different than alcohol or some other substances, as it can be present within a collection specimen even weeks after the employee or applicant could have ingested it.
In late November, the Illinois Legislature passed SB 1557, making it legal for employers to still have some sort of defense for those that abuse the now legal substance in the workplace. Per the law, employers could not be sued for “taking action pursuant to an employer’s reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.” This direct mentioning of employment law was due to the new status of the Illinois Right to Privacy in the Workplace Act that prohibits discrimination against employees for engaging in legal activities outside of the workplace.
Before this addition in language, it was confusing if employers would be legally able to take any sort of precautions or action against those who would be consuming the substance. With this language and the presence of the IL Right to Privacy Act, employers can still take action against those they have a reasonable suspicion to be under the influence. The state is currently treating marijuana like alcohol in that testing for current employees is done by reasonable suspicion. Symptoms of impairment in the workplace or while performing job duties should be recorded and well recorded to safeguard their decision to test. Per SB 1557’s clarifying language, employers will still be able to screen applicants for pre-employment purposes with no change to their methods.
Despite these changes, employers across the nation are implementing strategies to keep their work spaces drug free and safe. Here are some ways that some employers have been changing their policies to assure compliance with these new laws.