A Publication of WTVP

On Reasonable and Nondiscriminatory Drug Testing

They’ll huff and puff… but they don’t get to blow your business down. 

by Michael Davis and Adam Haight, IWIRC Corp. |
Michael Davis & Adam Haight

When the Illinois legislature passed the recreational marijuana law beginning January 1, 2020, employer questions about the enforcement of drug testing programs arose as well. Fortunately, lawmakers heard their concerns and amendments clarifying the initial legislation were signed by the governor in December.

Included in these amendments were essential clarifications needed by many human resource and safety professionals. First, it clarified that the law wasn’t intended to prevent employers from having drug-free workplace policies. Employers can enforce drug testing policies as long as they are reasonable and nondiscriminatory.

Second, many employers were (and still are) concerned that the law doesn’t allow for terminating an employee if the result of a reasonable, nondiscriminatory test is positive for THC, but the employee showed no signs of impairment. In fact, many employers are so concerned with this potential argument that they’ve dropped marijuana (THC) from their pre-employment drug testing panels. Some have even dropped marijuana from their drug testing programs altogether.

We believe the law doesn’t warrant these measures. Employers with reasonable and nondiscriminatory zero-tolerance, drug-free workplace policies need not stop what they’ve been doing—as long as they treat a positive marijuana test result the same as all other positive test results. 

Indeed, having legal counsel review employer drug testing policies and protocols for potential issues is warranted—and we encourage it. But we do not believe it is necessary to compromise workplace safety by discarding reasonable and nondiscriminatory policies and protocols for any drug.

No company can prevent litigation. Unfortunately, in today’s society, going to court is an all-too-familiar means to a desired end for the unhappy employee. As an attorney once told me regarding the inevitable challenges that arise after a significant change in the law, determining who gets sued first is like shooting a fish in a barrel. However, there are a few ways, above and beyond a legal review of your policies, that can decrease your odds of losing in court:

  • First and foremost, make sure your employees know your policies and how to apply them evenhandedly. That includes both those who enforce workplace drug testing policies and those who are subject to them. Train supervisors and leaders on how to be “reasonably suspicious” if you have a reasonable suspicion drug testing policy, and make sure they have the tools to execute the policy effectively and fairly.
  • Second, use an outside vendor for your drug testing policy enforcement. Our organization has offered reasonable suspicion training and drug testing for years now, and the question of onsite employer-conducted testing has been asked often. Though it may seem self-serving, we strongly advise against it. The potential claims of discrimination, as well as faulty or tainted testing, increase dramatically when a company chooses to perform tests on its own. PM