With the passage of the Cannabis Regulation and Tax Act in June, Illinois became the 11th state in the country to legalize the recreational use of marijuana. Although recreational consumers will not be able to purchase marijuana in the state until January 1, 2020, employers should not wait until the law goes into effect to review their drug testing policies, as this new law imposes several restrictions on when employers may take action against employees after a positive drug test.

Under the new law, employers may adopt "zero tolerance or drug-free workplace policies" that target employees' "use of cannabis in the workplace or while on call." This provision is in line with a recent trend among states, including Arizona, Arkansas, Connecticut, Delaware, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New York, Oklahoma and Rhode Island, that impose restrictions on employers' ability to regulate off-duty marijuana use.

The new law also places limits on when an employer may consider an employee "impaired": specifically, the employer must have, "a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee's performance." The law also provides examples of when employers may consider employees to be "impaired," such as, "symptoms of the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior," among others.

In addition, starting in January 2020, employers must give the employee, "a reasonable opportunity to contest" the basis for the employer's decision to take action before taking any adverse action (including discipline) against an employee for being "impaired" or after a positive drug test. This is a unique aspect of the Illinois law not present in other marijuana laws elsewhere in the country.

Although the new law does not give employees a private right of action to enforce these provisions, employers who violate them may be liable under Illinois's Right to Privacy in the Workplace Act, which prohibits discrimination against employees for "use of lawful products." Because this privacy law defines "lawful products" as products that are legal under state law, not federal law, employers will not be able to rely on marijuana's illegal status under federal law to avoid liability.