Thomas C. Garretson, Robbins Schwartz, Chicago
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Federal District Court Confirms Zero-Tolerance Cannabis Polices Are Lawful in Illinois
On July 17, 2024, the United States District Court for the Northern District of Illinois confirmed the legal right of employers to take disciplinary action against employees for violating drug-free workplace policies specifically related to an employee’s use of cannabis, a legal substance under Illinois law as of 2020. The case, White v. Timken Gears and Services, Inc., No. 21 CV 2290, 2024 WL 3443036 (N.D.Ill. 2024), is a notable development for employers that have been concerned about their ability to legally enforce zero-tolerance or drug-free workplace policies given Illinois law prohibits employers from taking action against employees for using lawful products (i.e., cannabis) during nonwork hours.
The Right to Privacy in the Workplace Act
The Right to Privacy in the Workplace Act (RPWA), 820 ILCS 55/1, et seq., prohibits an employer from discharging 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). The act defines “lawful products” as those products legal under state law. Id. As of January 1, 2020, cannabis became legal under state law pursuant to the Cannabis Regulation and Tax Act (CRTA), 410 ILCS 705/1-1, et seq. The RPWA, however, expressly includes an important exception with respect to employee use of cannabis, provided under §10-50 of the CRTA. 820 ILCS 55/5(a).
Section 10-50 of the CRTA outlines the impact of marijuana legalization in the employment setting. 410 ILCS 705/10-50. Specifically, the CRTA provides that nothing prohibits an employer from adopting “reasonable zero tolerance or drug free workplace policies, or employment policies concerning drug testing . . . provided that the policy is applied in a nondiscriminatory manner.” 410 ILCS 705/10-50(a). Similarly, the CRTA states that nothing shall limit or prohibit an employer from disciplining or terminating an employee for violating the employer’s policies or workplace drug policy. 410 ILCS 705/10-50(c).
White’s Employment and Termination
The plaintiff Joseph White (White) was employed by the defendant Timken Gears and Services, Inc. (Timken) as a Territory Account Manager. Timken maintained a Drug and Alcohol Policy with a random testing program pursuant to which employees are randomly selected for drug screenings. Testing positive for a controlled substance, including marijuana, is listed as a prohibited activity in the policy. For those employees who test positive, Timken offers an Employee Assistance Program through which employees are required to stop using the substance they tested positive for, participate in counseling, and submit to unannounced future testing. Under the policy, an employee testing positive following the first rehabilitation for unauthorized drug/alcohol use would result in the immediate termination of their employment. 2024 WL 3443036 at **1 – 2.
After submitting to a random drug test pursuant to the policy, White tested positive for marijuana. 2024 WL 3443036 at *2. White then participated in the Employee Assistance Program, which included meetings with a substance abuse counselor. White also submitted to another drug test approximately one month after the positive result, which was negative for marijuana. Shortly thereafter, White was required to randomly retest, which yielded a negative dilute result. Timken treats a negative dilute test as a failed test and provides employees the opportunity to retest to determine whether the sample was intentionally diluted. White was afforded this opportunity to retest, and it again yielded a second negative dilute result. Timken’s policy is to only allow an employee a single retest following a negative dilute result, and if a second negative dilute result is generated, it is Timken’s standard practice to terminate the employee. Id. Despite Timken’s standard practice, White was permitted to take a third test following the second negative dilute result, which yielded a positive result for marijuana. White’s employment was then terminated for violating the policy. Id.
White filed suit against Timken, claiming that the termination of his employment due to a positive marijuana test result violated the RPWA.
White’s Termination Did Not Violate the RPWA
The court granted Timken’s motion for summary judgment. In interpreting §10-50 of the CRTA, the court first noted that employers are authorized to adopt drug policies and that the plain language of the statute expressly permits two categories of policies: (1) zero-tolerance or drug-free workplace policies; or (2) employment policies concerning drug testing, smoking, consumption, storage, or use of cannabis in the workplace or while on call. 2024 WL 3443036 at *4. The court therefore rejected White’s argument that the CRTA limits employers to adopting zero-tolerance or drug-free workplace policies that prohibit only “in the workplace” conduct. Id.
The court also stated that the CRTA not only authorizes employers to adopt drug policies, but to terminate employees for violating them. Moreover, by the plain language of the CRTA, the court found that claims against an employer for certain actions taken pursuant to its drug policies, including “reasonable and nondiscriminatory drug testing,” are precluded. 2024 WL 3443036 at *6. According to the court, a plain reading of the CRTA (as well as its legislative history) indicates an employer may enforce its drug policies through random drug testing as long as the testing is (1) reasonable; and (2) nondiscriminatory. 2024 WL 3443036 at *5.
The court noted that Timken’s policy (i.e., a zero-tolerance policy) was permissible under the plain language of the CRTA, as was its enforcement through random testing, as long as said testing was reasonable and nondiscriminatory. As such, in order to maintain a cause of action, White was required to demonstrate that Timken’s random drug testing protocols were either discriminatory or unreasonable. As there was no dispute that White was not selected for random drug testing based on a legally protected characteristic (i.e., the random drug test was not administered in a discriminatory manner), the court stated the issue before it was whether the random testing protocols were unreasonable.
The court held that nothing in the record demonstrated Timken’s protocols were unreasonable. First, the court noted that White acknowledged receipt of the policy and was therefore on notice that he was expected to abide by the policy, that he was subject to random drug testing, and that he could be terminated should he test positive for a controlled substance, including marijuana. Second, the court noted that Timken allowing White, after his initial positive result, to provide a negative drug test before administering additional random drug tests was fair and reasonable. Third, the court also highlighted that White was actually given more chances to comply with Timken’s policy than are typically provided. Overall, Timken was legally authorized by the plain language of the CRTA to adopt its policy, enforce the policy through reasonable and nondiscriminatory drug testing, and terminate White for violating its terms.
Key Takeaways
The court’s decision confirmed that, despite the legalization of cannabis for recreational use in Illinois, employers are legally permitted to adopt and enforce reasonable zero-tolerance or drug-free workplace policies. Moreover, the court made it clear that an employer may enforce its policies through random drug testing, as long as the testing protocols are applied in a reasonable and nondiscriminatory manner and may discharge an employee for his or her policy violations (including those violations related to the employee’s use of cannabis). Employers should be sure to review their existing drug and alcohol policies to ensure legal compliance and always apply said policies in a reasonable and nondiscriminatory manner to limit exposure to challenges from employees.
For more information about employment and labor law, see CAUSES OF ACTION: EMPLOYMENT ACTIONS (IICLE®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.