Marijuana Drug Tests in the Workplace Would Follow Same Standard as DUI, Under Proposed Change in Illinois Law

By Robert McCoppin, Chicago Tribune

After years working successfully as an electrical substation operator for ComEd, Andre Burson said, he failed a marijuana drug test. Burson said he only used cannabis after work, never on the job, but was forced to pass more tests in the months after that to prove he was clean. He said he did so, but one day, his sample was considered contaminated. He was asked to have someone watch him give a urine sample, which he said he reflexively refused. Two weeks later, in 2019, records show, he was fired. “It was devastating. It still is,” Burson said. “My job was my life. I talked to lawyers, but nobody wants to touch it.”

Burson’s experience is hardly unique. Nearly 55,000 workplace drug policy violations were reported last year to the U.S. Department of Transportation alone. The pace of violations increased by 17% from June last year to the same month this year. Part of the increase, employers say, may be due to state legalization of cannabis. The drug remains federally prohibited, and its use is not allowed by anyone with a commercial driver’s license or under certain federal contracts.

While state lawmakers can’t change federal law, state Rep. Bob Morgan is trying to change state law to give some wiggle room for workers being tested for pot. His proposal would prohibit workers in Illinois from getting fired solely for a low-level positive result on a marijuana test. “The intent is to categorize cannabis use on personal time the same way we treat any other substance so long as you’re not impaired in the workplace,” he said.

Some employers worry the change would open the gates to more widespread use of weed by workers, said Todd Maisch, president and CEO of the Illinois Chamber of Commerce, which represents businesses throughout the state. The chamber didn’t oppose legalization because the law included protections for employers, but this new proposal undermines those standards and would lead to more lawsuits, he said.

The controversy comes as more employers — including Amazon and the Cook County Public Defender’s office — are dropping marijuana abstinence as a requirement for some jobs. The public defender previously rejected attorneys who applied for assistant public defender jobs but failed marijuana tests. Cook County policy allows personal use of marijuana, except for “safety-sensitive” positions, which included assistant public defender jobs. County officials since changed that job designation to non-safety-sensitive, and the attorneys were asked to reapply.

“It’s archaic,” said attorney Brittany Robinson, who had applied and was rejected for an assistant public defender job over marijuana use. “It doesn’t make any sense. Society has caught up to the reality of smoking marijuana on your own time and people don’t care. But our laws unfortunately haven’t caught up to that. We need laws and policies that stop putting people out of a job for petty reasons.” “It should be treated like alcohol,” said attorney Matt Stein, who also was rejected for an assistant public defender job for marijuana use. “There’s no reason to drug test an attorney unless there’s reasonable suspicion of impairment.”

Since cannabis was legalized in Illinois in 2020, a cannabis drug screening is no longer required as a qualifier for employment for non-safety-sensitive positions at Cook County. Marijuana can stay in a person’s system for up to a month, according to the Mayo Clinic, so a positive test does not necessarily indicate current use. As proposed, house bill 4116 states that an employer may not refuse to hire someone or discipline an employee for a positive drug test for THC — the main part of marijuana that gets users high — unless the level qualifies as impaired under the state’s driving under the influence law. In other words, rather than having some employers rejecting workers if they have any level of THC in their systems, the law would set a minimum level of 5 nanograms per milliliter of blood, or 10 ng/ml of urine, saliva or other bodily fluid.

The law states that employers may continue with preemployment and random drug-testing, with a “zero-tolerance” policy — yet must allow up to the driving-while-impaired limit. Exceptions will be included for federal jobs and emergency workers. Maisch, the chamber of commerce head, worries that the wording is contradictory and confusing, and starts a slippery slope toward looser restrictions. Perhaps one-third of employers don’t make marijuana a deal-breaker for workers, but many don’t want to advertise it, he said, for fear of becoming a magnet for marijuana use.

As for Burson, the fired ComEd worker, he eventually found another job with a different company, but at a fraction of the salary. He said he took pride in his work as the family bread winner, working overtime to restore power after storms. He was particularly surprised that his registration as a medical marijuana patient meant nothing when it came to his employment. “It’s just not right,” he said. “I thought the system would protect me.”

ComEd spokesman John Schoen wrote in a statement that the utility’s work can be dangerous, and the safety of the company’s workers and customers is its top priority. He pointed out that Burson’s experience occurred before cannabis was legalized in Illinois, and noted that some workers are subject to federal rules regarding testing for drugs and alcohol. “Abiding by these rules is necessary to ensure that our employees are able to complete their work safely and return home to friends and family each day,” he wrote.

McCoppin, R. (2021). Marijuana drug tests in the workplace would follow same standard as DUI, under proposed change in Illinois law. Chicago Tribune. https://www.chicagotribune.com/marijuana/illinois/ct-illinois-marijuana-drug-test-20210820-33tncygpzbf4tddhtkvashkq74-story.html