Employers are still struggling with the enforcement of their drug and alcohol testing policies after the new year when recreational cannabis use and sales are legal in Illinois. The main problem? No reliable test exists to determine whether an employee is under the influence at the time of testing because indicators of cannabis use are detectable long after the “high” is gone. Add to that the fact that existing Illinois law prohibits adverse employment action against an individual for their lawful off duty activities, including cannabis use after the first of the year 2020.
Given that, is there any purpose in testing for cannabis after January 1st? Some advisers say no to that question. It is certainly true that pre-employment drug screens should no longer test for cannabis use. The same might be said for random drug and alcohol testing. Reasonable suspicion testing presents a different situation though. A drug screen that includes cannabis testing can still be useful as confirmation of observations of the employee being under the influence. For example, an employee who behaves out of the ordinary at work, maybe sleepy or unusually distracted, has bloodshot eyes and smells like cannabis, might raise a reasonable suspicion of being under the influence. A positive drug test result, while not definitive in itself, strengthens the conclusion that the employee was under the influence. While reliance on a positive test result for cannabis alone will no longer be a basis for employment action, it can still play a secondary role in determining drug policy violations.
