Bob Morgan illinois state representative

Proposal to protect workers from getting fired for off-the-job marijuana use advances with state lawmakers

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A proposal to prohibit firing workers for trace amounts of marijuana in their systems moved closer to passage when the Illinois House of Representatives approved the measure earlier this month — but employers remain very leery about it.

The chief sponsor, state Rep. Bob Morgan, a Democrat from Deerfield and an attorney who does cannabis consulting, said the change would let people, especially medical cannabis users, use a legal product on their own time “and not fear losing their job.”

But employers fear the change will only lead to more fights in court over who qualifies and how the law is applied.

The House voted 61-41 to pass the bill, largely along partisan lines, with Democrats in favor and Republicans opposed.

The measure underwent two amendments that helped get the Illinois Sheriffs’ Association and Illinois Manufacturers’ Association to drop opposition and go neutral. The bill now is being considered in the Senate.

In general, the proposal would prohibit employers from firing or refusing to hire someone based on a positive test for tetrahydrocannabinol, or THC, the main ingredient in marijuana that gets users high — unless the worker shows signs of impairment or tests higher than the threshold for driving under the influence, which is 5 nanograms per milliliter of blood, or 10 nanograms per milliliter of other bodily fluid such as saliva or urine.

Employers would still be able to set zero-tolerance levels to exclude workers in safety sensitive positions such as law enforcement, firefighters and federal workers or contractors, who are prohibited from using cannabis by federal law.

Certain workers could also be prohibited from marijuana use: those who carry a firearm; those who perform medical procedures or emergency services; those who work with hazardous or flammable materials or drugs; those who work with heavy machinery, aircraft, watercraft or motorized vehicles; and anyone who performs critical services and works with critical infrastructure.

While federal law still prohibits marijuana possession, medical marijuana has been legalized in 37 states, and 18 states allow recreational use. While legalization has expanded, the number of workers testing positive in the workplace generally has risen since 2016, testing company Quest Diagnostics reported.

The overall cannabis positivity rate in the U.S. workforce in 2020, the most recent year available, was 4.4%, down slightly from a 16-year high in 2019.

Workplace drug testing has disrupted the supply chain, as 72,000 truckers out of 3 million registered lost their jobs due to failed tests since the beginning of 2020, according to government data reported by the New York Post. More than half of those failed tests were due to cannabis.

THC remnants can remain in the body for weeks. That’s why the cannabis legalization advocate NORML has long called for testing performance, rather than testing for drugs, to determine if someone is impaired on the job.

Julie Schauer, board vice president of Parents Opposed to Pot, called the proposal “a breach of the legislators’ responsibility to public safety.” She predicted the proposal would lead to more workplace accidents and higher workers’ compensation and insurance costs.

Illinois lawmakers approved legalization effective in 2020 based in part on the promise that employers would have protections against workers being high on the job. The attempt to roll back those protections now, Schauer said, is typical of the marijuana industry getting its foot in the door, then trying to expand its market.

“This is a grab by the industry,” she said. “They always ask for more.”

Todd Maisch, president of the Illinois Chamber of Commerce, said the group agreed not to oppose the bill, but has serious concerns about how it will play out.

“Nobody should be happier about this than trial lawyers,” he said. “This is going to lead to litigation, there’s no doubt about it.”

One concern is that research has not established a clear correlation between the amount of THC in a person’s blood stream and the level of impairment. Employers also would like the definition of safety sensitive jobs to include ancillary duties, such as not just someone driving a truck, but those loading it.

Sponsoring Sen. Robert Peters, a Chicago Democrat, was hopeful the Senate would approve the measure before its scheduled adjournment April 8.

Attorney Brittany Robinson knows firsthand how cannabis testing in the workplace can keep people out of a job. Last year, she was accepted for a position as an assistant public defender for Cook County, but lost the job due to testing positive for cannabis.

The situation has changed since then. A cannabis drug screening is no longer required to work non-safety-sensitive positions at Cook County, and assistant public defenders are no longer considered safety sensitive.

Robinson has since started her own law business in Chicago’s Hyde Park, doing criminal defense work, with some real estate and business work.

“I’m running a viable business,” she said. “My clients are the ones I have to answer to. I’m sure they’re not worried about my personal marijuana use.”

She called the proposed change in the law “a step in the right direction.”

“It’s like drinking alcohol, you’re not testing to see if there’s alcohol in their system from last night, you just want to make sure they’re not drunk,” she said. “It’s the same with cannabis. It’s legal. As long as you’re not putting other people in danger, and not impaired while conducting business, it shouldn’t be a problem.”