Illinois recreational marijuana law raises more questions than answers

On 4th December 2019, amendments to the law clarified that Illinois employers can test candidates for marijuana use.

But what they can to do with a positive result remains unclear.

The problem with the Cannabis Act is that the provision dealing with terminating a working relationship based on a positive marijuana test is ambiguous and confusing.

While permitting employers to act based on a ‘reasonable’ drug testing policy, ‘reasonable’ is not defined in that context.

Also, it’s not clear what comprises ‘failing’ a drug test.

For example, do marijuana traces from use a month ago count as failing?

What if the tested individual fails the test due to use of topical CBD products, which do not cause one to get high but leave traces of THC?

The Privacy Act shields employees if they smoke cigarettes away from the employers’ premises.

Even if testing reveals traces of alcohol, without proof that the employee has been under the influence on the job, action cannot be taken against them.

This is where it gets interesting: on 1st January 2020, marijuana becomes a ‘lawful product’ falling under the Privacy Act.

It means that an employer cannot discipline an employee for marijuana use off-premises, which should provide some protection to marijuana users.

Some clarification, agency guidance, or case law may be needed to answer the questions presenting themselves.