Illinois Drug Testing Laws 2024

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Illinois Drug Testing Laws 2024

Even though Illinois has had a regulated cannabis market since January 1, 2020, the state does not currently have a general drug testing law. Nevertheless, several statutes determine workplace drug testing policies for private and public employers statewide. For instance, Section 10-50 of the Illinois Cannabis Regulation and Taxation Act permits employers to adopt reasonable zero-tolerance or drug-free workplace policies. In addition, it allows them to conduct drug testing (based on these policies) on employees who are either at the workplace or on call, and discipline those who fail these tests. Employees are considered “on call” when they have been informed by their employer at least 24 hours ahead of time that they might be called to work or perform tasks related to their job, either at their workplace or previously designated offsite locations.

Other key laws that affect workplace drug testing in Illinois are:

• The Right to Privacy in the Workplace Act – This protects employees from being fired for using cannabis (and other lawful products) outside the workplace during non-working and non-call hours. This law also makes it unlawful to refuse to hire individuals who use lawful products or discriminate against them in the workplace for off-duty cannabis consumption
• The Police and Community Relations Improvement Act - This Act mandates local law enforcement agencies to adopt written drug testing policies for officer-involved shootings
• The Drug Free Workplace Act – It requires employers with at least 25 employees who wish to receive state grants or execute contracts worth $5,000 or more to certify that they can provide drug-free workplaces

These laws collectively outline procedures and requirements for workplace drug testing in Illinois to provide a balance between ensuring employers’ interests are maintained and protecting employees from undue discrimination. Municipalities typically adhere to statewide regulations and are generally not authorized to enact ordinances regulating workplace drug testing in their localities.

What Kinds of Drug Tests Can Employers Conduct in Illinois?

Employers in Illinois can legally test employees for a broad scope of controlled substances, including cocaine, meth, PCP, peyote, heroin, morphine, fentanyl, other similar opiates and opioid derivatives, and cannabis. There are no limits to the types of marijuana tests that are allowed, and many employees typically conduct:

• Pre-employment Tests: These are usually done as a condition of employment
• Random Tests: These are typically done without prior notice but can only be done on employees who are on the employer's premises or on-call
• Reasonable suspicion/Impairment Tests: These are conducted when the employer suspects an employee is adversely under the influence of cannabis at the workplace or reasonably believes that their performance is being impaired by marijuana use
• Probationary/Return-to-duty Tests: These are usually done on employees who have completed a drug rehab program and are administered unannounced
• Post-accident Testing: These are conducted after work-related accidents that result in bodily injury or property damage

Employees are usually required to provide urine samples for drug tests in Illinois. However, saliva, blood, or hair samples may also be collected, depending on the test method and specific substances being tested.

Can Employers Do Random Drug Testing in Illinois?

Per Section 10-50 of the state’s Cannabis Regulation and Taxation Act, employers in Illinois can conduct random drug testing on their employees, provided this requirement is included in the employer’s workplace drug policy. This policy should be clearly communicated to employees and made readily available to them. Employers are also given discretion over their preferred drug testing procedures and notification protocols. However, they must be reasonable and non-discriminatory. Where a random drug test is to be conducted because an employee is believed to be impaired or under the influence of cannabis, the employee has the right to contest the basis of this determination.

What Happens if You Fail a Drug Test in Illinois for a Job?

The employer's workplace drug policy largely determines the sanctions for failing a drug test in Illinois. These sanctions can range from mandatory drug counseling and enrolment in rehabilitation programs to outright termination. However, the Illinois Right to Privacy in the Workplace Act prohibits employers from disciplining employees who fail drug tests if the drugs are lawful products, like cannabis, used off-duty unless they can prove otherwise. Note that this law does not cover employees of non-profit organizations whose primary purpose or objective is to discourage the use of these lawful products.

Can I Be Fired for Refusing a Drug Test in Illinois?

Yes, you can be fired for refusing a workplace drug test in Illinois if drug testing is part of your employer's workplace drug policy and you were informed of this at the time of employment. Illinois-based employers are legally authorized to take actions they deem necessary to enforce their workplace drug policies (on the condition that these policies are reasonable and non-discriminatory). Nevertheless, affected employees can contest these actions, especially if their refusal to take the test is for privacy, medical, or religious reasons, by taking the following steps:

• Consulting an attorney
• Reviewing the employer’s drug policy and ensuring that their testing procedures are not discriminatory or in violation of the local workplace privacy laws
• Reviewing their employment contract or union agreement for safeguards against undue termination
• Filing a complaint against the employer with the Illinois Department of Human Rights and the Equal Employment Opportunity Commission (EEOC) if they determine that the termination violated their rights

Can You Get Fired for Failing a Drug Test with a Medical Card in Illinois?

Even though medical marijuana use is legal in Illinois, employers may still enforce a zero-tolerance or drug-free workplace. As such, you can get fired for failing a drug test with a medical card if this failure violates your current (or potential) employer’s drug policy. Employees who use marijuana and other lawful products on their employer's premises and during working or on-call hours can also get fired, regardless of whether or not they have valid state-issued medical cards.

Can Employers Conduct Drug Tests on Applicants in Illinois?

No laws prohibit employers from requesting job applicants to submit to drug testing during the interview stage in Illinois, and employers who wish to do so are given leeway to determine the scope of testing. However, employers are expected to properly communicate testing requirements to the applicants beforehand and get their consent. The scope and protocol for these tests must also be reasonable, non-discriminatory, and consistent across all applicants. Employers cannot refuse to hire an applicant solely because they use lawful products like marijuana outside the employer’s premises. In situations where an applicant refuses to consent to a drug test, the employer may take actions as stated in their workplace drug policy.

Is Pre-Employment Drug Testing Allowed in Illinois?

There are currently no known Illinois pre-employment drug testing laws. Nonetheless, employers across the state are permitted to conduct pre-employment drug tests on potential hires before they resume work. These tests must be in line with an employer's established workplace drug policy, which must have been previously communicated to the potential employee. Pre-employment drug tests must also be done in adherence to applicable laws, such as the Illinois Right to Privacy in the Workplace Act.

Does Illinois Allow Public Agencies to Submit Employees to Workplace Drug Tests?

Drug testing laws and guidelines in Illinois apply to private and public employers/employees. As such, public employers who wish to promote a zero-tolerance or drug-free workplace must have a written, reasonable, and non-discriminatory policy to this effect. Likewise, employees in such public agencies must comply with their employers’ workplace drug policies. They can also seek legal recourse if they are targeted or discriminated against for lawful drug use outside the employer’s premises and during off-duty or off-call hours.

Can Employers Choose to Create Drug-Free Workplace Policies?

Yes, Illinois employers can create and enforce zero-tolerance or drug-free workplace policies. However, these policies must be reasonable, applied in a non-discriminatory manner, and must not conflict with federal, state, and local restrictions and regulations on employment.

Employees Exempted From Illinois Workplace Drug Testing Laws

While state law permits Illinois-based employers to implement and enforce drug testing procedures and policies, these policies must not conflict with federal, state, or local employment restrictions. To this end, employees in federal agencies like the Department of Transportation, as well as safety and security-sensitive agencies and organizations in the state typically have more stringent requirements that supersede state laws. These exemptions usually limit their drug use during off-duty hours, regardless of whether or not the substances in question are considered lawful products in Illinois. These exemptions may also extend to employers seeking federal or state grants and contracts.

What are the Requirements for Drug Testing Labs in Illinois?

There are no laws restricting Illinois employers from contracting any drug lab to test their employees or job applicants. However, pre-employment drug testing for laborers, mechanics, or any other workers hired by contractors and subcontractors for public works projects must be conducted by a lab certified for Federal Workplace Drug Testing Programs by the Substance Abuse and Mental Health Service Administration (SAMHSA).