You may have heard that with last month’s revisions to the Cannabis Regulation and Tax Act, the law legalizing cannabis in Illinois, employers can now withdraw a job offer if a job applicant tests positive for cannabis. While we understand why some attorneys are interpreting the changes to the law that way, we disagree with it. It is our position that once the Cannabis Regulation and Tax Act goes into effect next month employers should not withdraw a job offer solely because an applicant tests positive for cannabis.
The confusion lies with the amendments to section 10-50(e) of the Act, which now reads:
“Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for: (1) actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to 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.” 410 ILCS 705/10-50(e).
The Act explicitly states that an employer cannot be held liable for withdrawing a job offer when one of its employees fails a drug test. So doesn’t that mean that if an applicant tests positive for cannabis his or her job offer can be withdrawn?
The question is what constitutes “a failure of a drug test?” Does testing positive for cannabis mean that someone has failed a drug test? We do not see any basis to this interpretation. It is legal to use cannabis in Illinois. How can someone fail a drug test for using something that state law makes legal? Would an applicant be fired for having opioids in his or her system if he or she had a prescription to use it? It does not seem like it.
The Right to Privacy in the Workplace Act states, “it shall be unlawful for an employer to refuse to hire or to discharge any individual…because the individual uses lawful products off the premises of the employer during nonworking and non-call hours.” 820 ILCS 55/5(a). “’[L]awful products’ means products that are legal under state law.” Id. This law explicitly states that it is illegal for employers to refuse to hire job applicants because they use cannabis, or legally use prescription drugs, outside of work. So this directly contradicts the interpretation of section 10-50(e) of the Cannabis Act saying that a job offer can be withdrawn if someone tests positive for cannabis. When two statutes conflict, the one that is more specific controls, and here the Right to Privacy in the Workplace Act is more specific.
Also, you do not want to become a test case. Plaintiffs’ attorneys will be champing at the bit to sue employers who violate the Right to Privacy in the Workplace Act. So we suggest playing it safe from a legal perspective and not withdrawing job offers because an applicant tests positive for cannabis.
Feel free to contact us if you have any questions about this.