Drug Testing in Illinois

Reasonable Workplace Drug Testing Is Expressly Preserved

Illinois’ Cannabis Regulation and Tax Act, 410 ILCS 705/10-50, expressly preserves an employer’s ability to adopt reasonable zero-tolerance or drug-free workplace policies and employment policies concerning drug testing, smoking, consumption, storage, or cannabis use in the workplace or while on call.

The statute also states that employer actions taken under a reasonable workplace drug policy can include:

• Reasonable drug and alcohol testing of employees or applicants.
• Reasonable and nondiscriminatory random drug testing.
• Discipline or termination for violating a workplace drug policy.
• Withdrawal of a job offer following failure of a drug test under a reasonable policy.

Official source: Illinois General Assembly — 410 ILCS 705/10-50

Policies Must Be Reasonable and Nondiscriminatory

Illinois’ cannabis law does not give employers unlimited discretion. Section 10-50 repeatedly uses the concepts of a reasonable workplace drug policy and nondiscriminatory application.

• Use a written policy that clearly states prohibited conduct and testing circumstances.
• Apply applicant and employee testing rules consistently.
• Define random-testing selection objectively.
• Document reasonable-suspicion and impairment observations.
• Use confirmation and Medical Review Officer procedures appropriate to the testing program.
• Review collective bargaining and federal requirements when applicable.

Illinois Protects Lawful Off-Duty Products — With Cannabis Exceptions

The Right to Privacy in the Workplace Act, 820 ILCS 55/5, generally prohibits an employer from refusing to hire, discharging, or otherwise disadvantaging an individual because the person uses lawful products off the employer’s premises during nonworking and non-call hours.

The statute specifically says this protection is subject to other law, including Section 10-50 of the Cannabis Regulation and Tax Act. That means an Illinois employer should not analyze off-duty cannabis use under the privacy statute alone.

Official sources: Illinois Department of Labor — Right to Privacy in the Workplace Act and Illinois General Assembly — 820 ILCS 55/5 .

Federal and Safety-Sensitive Rules Still Apply

Section 10-50 expressly states that Illinois cannabis law does not interfere with federal, state, or local employment restrictions and specifically references the federal DOT marijuana rule.

Employers with CDL drivers, aviation workers, pipeline personnel, transit employees, federal contractors, or other regulated positions should therefore determine whether federal testing requirements control before applying an ordinary Illinois non-DOT policy.

Workers’ Compensation Premium Reduction May Be Available

Illinois Code §72-1716 provides that a workers’ compensation premium reduction may be granted when the insurer determines that the insured has established and maintains an alcohol- and drug-free workplace program complying with §§72-1701 through 72-1715.

Illinois Code reference: Illinois Code §72-1716

State Construction Contractors Must Maintain a Compliant Program

Illinois Code §72-1717 requires contractors seeking state contracts for construction or improvement of public property or publicly owned buildings to maintain a drug-free workplace program that complies with Chapter 17 throughout the contract.

Covered contractors must subcontract only to subcontractors meeting the same requirement and must submit an affidavit with the bid verifying compliance.

Illinois Code reference: Illinois Code §72-1717

Employers Do Not Have to Permit Workplace Cannabis Use or Impairment

Under 410 ILCS 705/10-50, an employer is not required to permit an employee to use cannabis or be under the influence of cannabis in the workplace, while performing job duties, or while on call.

Employers may maintain reasonable zero-tolerance and drug-free workplace policies and may discipline or terminate an employee for violating those policies.

Official source: Illinois General Assembly — 410 ILCS 705/10-50

Impairment Requires a Good-Faith, Articulable Basis

Illinois provides unusually specific guidance for an employer that treats an employee as impaired by cannabis. The employer may rely on a good-faith belief that the employee manifests specific, articulable symptoms while working that decrease or lessen job performance.

The statute identifies examples involving speech, dexterity, agility, coordination, demeanor, irrational or unusual behavior, machinery operation, disregard for safety, serious equipment or property damage, production disruption, and carelessness resulting in injury.

If the employer disciplines the employee based on that impairment determination, the employee must be given a reasonable opportunity to contest the basis.

Medical Cannabis Does Not Eliminate Workplace Drug Policies

The Compassionate Use of Medical Cannabis Program Act, 410 ILCS 130/50, states that employers may enforce policies concerning drug testing, zero tolerance, or a drug-free workplace when those policies are applied in a nondiscriminatory manner.

The statute also states that an employer may discipline a registered qualifying patient for violating a workplace drug policy and may discipline an employee for failing a drug test when failing to do so would violate federal law or cause the employer to lose federal contracts or funding.

Official source: Illinois General Assembly — 410 ILCS 130/50

Choosing THC or No-THC Panels

• Illinois employers may include THC in a reasonable and nondiscriminatory workplace testing policy.
• Adult-use legalization does not require an employer to permit workplace cannabis use or impairment.
• For impairment-based discipline, document the specific articulable symptoms required by Section 10-50.
• Give the employee a reasonable opportunity to contest an impairment determination when the statute requires it.
• Medical-cannabis status does not automatically invalidate an employer drug-testing policy.
• No-THC panels are available when an employer intentionally excludes marijuana from a lawful non-DOT program.
• DOT marijuana testing remains governed by federal requirements.

DOT Rules Are Separate from Non-DOT Testing

A personal or employer non-DOT drug test should not be substituted for a test that is required under DOT regulations. DOT programs have specific requirements for test reasons, forms, collection procedures, laboratories, Medical Review Officers, refusals, records, and return-to-duty processes.

Federal source: U.S. Department of Transportation — 49 CFR Part 40

Examples of DOT-Regulated Industries

• Commercial motor carriers regulated by FMCSA.
• Aviation employers regulated by FAA.
• Railroad employers regulated by FRA.
• Public transit employers regulated by FTA.
• Pipeline operators regulated by PHMSA.
• Other covered transportation operations under federal rules.