Workplace Drug Testing Issues – Illinois State Laws
Illinois requires employers on State public works projects to maintain a drug-free workplace.
These categories do not affect DOT-regulated drug testing. Government employers should always call for potential additional restrictions on employee drug testing.
Update on Illinois and Recreational Marijuana
Illinois HB 1438
- Legalizes recreational marijuana effective January 1, 2020, for those ages 21 and older
- Employers are not required to permit employee use of marijuana while at work, performing job duties, or on call.
- Requires specific changes to drug-free workplace policies and procedures:
- Employers can have policies addressing drug testing, smoking marijuana, marijuana storage, etc., provided that the approach is applied in a nondiscriminatory manner.
- Employers are not required to accommodate employees being under the influence or using marijuana in the workplace.
- Employers must have “good faith belief” that an employee is under the influence – can be established using specific, articulable symptoms, but not strictly a drug test.
- Employers should use a positive drug test for marijuana in conjunction with specific signs and symptoms of impairment before taking action.
- Employers cannot take action based on the use of lawful products (marijuana) outside of work hours.
- Defers to federal, state, and local restrictions on employment, such as Part 40
Drug Testing Issue | Status | Comments |
---|---|---|
Instant or POCT Testing | Restrictions | It is not allowed for employers on public works projects. |
Drug Panels | Restrictions | For employers on public works projects, at a minimum, must use a nine-panel urine drug test. |
Laboratory | License | For confirmation testing, SAMHSA or CAP approved. |
MRO Required | Not Required | The use of MRO is highly recommended avoiding liability in your drug testing program. Also should be used for employers on public works projects. |
Random Testing | No Restrictions | It is required for employers on public works projects. |
Post-Accident | No Restrictions | It is required for employers on public works projects. |
Reasonable Suspicion | No Restrictions | It is required for employers on public works projects. |
Oral Fluids | Restrictions | For employers on public works projects, urine is required. |
Hair Testing | Restrictions | For employers on public works projects, urine is required. |
Unemployment Denial | Yes, address in company policy. | An individual is disqualified for benefits if discharged for misconduct connected with the individual’s last work. State in your drug-free workplace policy that a refusal to test or a positive test is misconduct. Terminate employment for misconduct. |
Workers Comp Discount | No | |
Intoxication Defense | Yes, available | If you test positive for drugs or alcohol, you are denied your workers’ compensation benefits. DOT-like testing must be followed. EMPLOYMENT (820 ILCS 305/) Workers’ Compensation Act. |
Medical Marijuana | Yes | Employers may not discriminate due to a patient’s status, but the law specifically allows employers to drug test and discipline violations. |
Recreational Marijuana | No | |
Report Driver DOT Positives | No | |
General Statute | This state has no known statutes restricting workplace drug or alcohol testing. A separate law in Illinois exists that mandates and regulates drug testing by public works employers. |
Intoxication Defense – States vary in their willingness to allow employers to use an injured worker’s intoxication against a compensation claim. State laws’ intoxication defenses generally fall into one of three rough categories: reasons that do not depend on causation; defenses that require some form of proximate causation between intoxication and injury; and defenses that require that intoxication be the sole cause of injury. Always check with your insurance company and attorney when you have a positive post-accident test after an injury.
EMPLOYMENT (820 ILCS 305/) Workers’ Compensation Act.
This chart is intended for informational purposes only and should not be relied upon for legal guidance. State and local law vary greatly; therefore, you are advised to consult experienced legal counsel during the design of your actual substance abuse testing program and with any questions that follow.