Supplemental materials for LEAP 2025 session Managing Workplace Drug Issues: Policies, Compliance and Best Practices
Some states have anti-discrimination laws that make it illegal for employers to punish employees for participating in legal activities outside of work. For example, employers can’t discipline or fire (or refuse to hire) someone who drinks alcohol or smokes cigarettes on their own time away from work premises.
But what about casual marijuana smokers in states that allow recreational use of cannabis? Can employers refuse to hire them or fire them if they test positive on a blood test? That’s the conundrum an Illinois employer recently faced when it wanted to enforce a zero-tolerance policy against drug users, including users of marijuana.
Recent case: Joseph was a territory account manager for Timken Gears, selling the transmission equipment the company makes. He worked mostly from his home. Timken Gears has a strict no-drugs policy that includes marijuana on the list of controlled substances that are not allowed.
When Joseph failed a random drug test that showed use of marijuana, he was suspended pending a negative test. He finally tested negative and was reinstated. But follow-up tests showed he might have used cannabis again, so the company fired him.
Joseph sued, alleging his firing violated the Illinois Right to Privacy in the Workplace Act. That law says employers can’t fire workers “because the individual uses lawful products off the premises of the employer during nonworking and non-call hours.”
Since 2020, using marijuana has been legal in Illinois.
The employer argued that the law that legalized marijuana usage allows employers to establish and maintain a drug-free workplace. The court was left to decide whether testing positive but not actively using the substance at work could be grounds for termination.
After reading the statutory language, the court concluded that off-premises drug use could be punished if the policy was reasonable and didn’t discriminate. And it said Timken Gears’ policy—which gave employees a second chance to get and stay clean—was reasonable. (White v. Timken Gears, ND IL, 2024)
Advice: Before implementing and executing a drug-testing program in a state that permits marijuana use and has a law protecting employees from lifestyle discrimination, have your attorney review each law carefully. Are controlled substances excluded from protection under the lifestyle-discrimination law? Does the marijuana law address at-work use? Do the exclusions require any safeguards, such as running a second test of the same sample? Must a drug-free policy be reasonable and nondiscriminatory? Only a qualified attorney can safely guide you through that legal maze.
Interested in joining HR Employment Law Advisor? For a limited time, LEAP 2025 attendees can get an annual membership at 30% off at https://www.hremploymentlawadvisor.com/leap30.
