Zero-tolerance marijuana policies are not unlawful in Illinois, a federal district court has determined, providing greater clarity for employers. In late 2019, Illinois amended its marijuana law, the Cannabis Regulation and Tax Act (CRTA), to ensure employers could continue to implement policies prohibiting workers from using marijuana or marijuana products despite the state's decision to permit adult recreational marijuana use. Nevertheless, the extent to which employers could enforce their policies and possible conflicts with Illinois's law prohibiting discipline for lawful non-work activities remained.

A new court decision - White v. Timken Gears & Services, Inc., No. 21-cv-2290 (N.D. Ill. July 17, 2024) - has answered some of these questions, providing further support for Illinois employers that have adopted and want to continue to enforce zero-tolerance policies regarding marijuana.

Background

Employer policy prohibited marijuana and required random testing

The employer company develops, manufactures, and sells industrial motion products, such as augers, gear drives, and transmissions. The company 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.

Employee tested positive for marijuana and participated in the Employee Assistance Program

The plaintiff-employee worked for the employer as a Territory Account Manager. In that role, he worked from home selling products and repair services, but also drove a company car to customers' facilities.

On December 6, 2019, the 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, except he was not allowed to drive a company vehicle.

Employee tested positive for marijuana in follow-up testing

On January 6, 2020, the employee was required to submit to a follow-up drug test, and his result was negative. On January 21, 2020, the employee was required to take another drug test, and this time his result was deemed a "negative dilute," which the employer treated as a failed test. The employee was allowed to take a re-test, and his result was again deemed a "negative dilute." The employer was unable to reach the employee via phone afterward, and the employee did not respond to the company's email to him. On January 27, 2020, the employer permitted the employee to undergo a second re-test, and his result was positive for marijuana. As a result, the employer terminated the employee's employment citing his violation of the Drug and Alcohol Policy.

Employee sues for alleged violation of the Illinois Right to Privacy in the Workplace Act (IRWPA)

The employee filed suit against the employer for allegedly violating the IRWPA, 820 ILCS 55/1, et seq. and the case was removed to the U.S. District Court for the Northern District of Illinois.

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." 820 ILCS 55/5(a). As of January 1, 2020, cannabis is a "lawful product" under the IRWPA.

However, Illinois's Cannabis Regulation and Tax Act (CRTA) addresses employment and employer liability for conduct relating to the use of cannabis under state law. Section 10-50 specifically addresses what actions employers can take regarding cannabis-related violations. Those provisions were central to the court's analysis of the employee's claims against the employer.

Court's analysis of CRTA's employment provisions

Engaging in statutory interpretation, the court identified three key provisions from Section 10-50 of the CRTA. First, the CRTA authorizes 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 court emphasized that the CRTA authorized adoption of either type of policy and that a "zero tolerance" policy need not be limited to employees "in the workplace."

Second, the CRTA states that employers may discipline or discharge an employee for violating their "employment policies or workplace drug policy." The court stated that this provision "not only authorizes employers to adopt drug policies, but it also authorizes employers to terminate employees for violating them."

Third, the CRTA precludes employees from bringing claims against an employer for certain actions taken pursuant to their drug policies, including "reasonable and nondiscriminatory random drug testing." The court stated: "A plain reading of this provision . . . indicates that an employer may enforce its drug policies through random drug testing so long as the testing is (1) reasonable and (2) nondiscriminatory."

The court summarized these provisions as follows: "[E]mployers 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."

Court approves the company's zero-tolerance policy and random drug testing

Applying this interpretation to the case at hand, the court determined that the employer had adopted a permissible "zero-tolerance" policy that it enforced through random drug testing. Therefore, in order to prove a violation of the CRTA and, in turn, the IRWPA, the employee needed to show that the employer's actions were either discriminatory or unreasonable. The court concluded that the employee had not made such a showing and therefore granted summary judgment in the employer's favor.

Explaining its reasoning, the court observed that the employer had not selected the employee for testing based on a legally protected characteristic, so the employer's policy and enforcement could not be discriminatory. As for reasonableness, the court noted that the employee had acknowledged receipt of the employer's Drug and Alcohol Policy, which advised him of the company's drug testing procedures and potential consequences for violating the policy.

The court also noted that the employer did not immediately terminate the employee for a first-time positive test result and "[c]ritically" allowed the employee to provide a negative test result before conducting additional, follow-up testing. After further observing that the employer granted the employee more chances to comply than its policy than required, the court concluded that both the employer's policy and its implementation of the policy were reasonable.

Because the employer's policy and actions were neither discriminatory nor unreasonable, the court held that the CRTA allowed the employer's actions resulting in the termination of the employee's employment and the employee could not maintain a claim against the employer under the IRWPA.

Conclusion

Illinois is one of numerous states that has legalized recreational marijuana. Despite early uncertainty regarding the interpretation of Illinois' laws around marijuana use, the courts' interpretations have helped clarify that employers can still implement drug-free workplace polices, including zero-tolerance policies, and enforce them, including by requiring random drug testing. The Timken case further demonstrates that Illinois employers' zero-tolerance policies are not restricted to prohibiting only in-the-workplace conduct, and adverse action can occur as long as it is not unreasonable or discriminatory. Still, employers are well advised to closely review their drug-free workplace and testing policies and, if necessary, revise to ensure that employees are aware of the employer's expectations regarding drugs, including marijuana, and potential consequences of a policy violation.

Posted: September 20, 2024

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