Illinois does not have a statute or regulation generally addressing drug testing of employees and applicants by private employers. However, Illinois law requires that employers working under a public works contract have a written program in place for drug testing employees.
In addition, the Illinois Human Rights Act, which makes it unlawful for employers in Illinois to discriminate based on disability, addresses permissible drug testing.
DRUG TESTING FOR PUBLIC WORKS CONTRACTORS
Illinois’ Substance Abuse Prevention on Public Works Project Act (Act) covers employers who are contractors or subcontractors performing a public works project. Before beginning work on a public works project, an employer must have a written substance abuse prevention program in place which:
- Prohibits employees from using, possessing, distributing, delivering or being under the influence of any drug or alcohol while performing work on a public works project; and
- Requires employees performing work on the public works project to submit to pre-hire, random, reasonable suspicion and post-accident drug and alcohol testing.
In addition, the substance abuse prevention program must include a procedure for notifying an employee who violates the program’s prohibition, who tests positive for a drug or who refuses to submit to required drug or alcohol testing that the employee may not perform work on a public works project until he or she meets certain conditions.
The written program must be filed with the public body engaged in the construction of the public works and made available to the general public.
All drug and alcohol testing must be performed by a laboratory that is certified for Federal Workplace Drug Testing Programs by the Substance Abuse and Mental Health Service Administration of the federal Department of Health and Human Services.
All substance abuse prevention programs must contain at least a nine panel urine drug test plus a test for alcohol. Testing an employee's blood may only be used for post-accident testing; however, blood testing is not mandatory where a urine test is sufficient.
An employee is considered to be under the influence of alcohol if the alcohol concentration in his or her blood or breath is at or above 0.02.
Reasonable Suspicion Testing
Under the Act, an employee whose supervisor has reasonable suspicion to believe the employee is under the influence of alcohol or a drug is:
- Subject to discipline, up to and including suspension; and
- Required to undergo an alcohol or drug test.
“Reasonable suspicion” means a belief, based on behavioral observations or other evidence, sufficient to lead a prudent or reasonable person to suspect an employee is under the influence and exhibits slurred speech, erratic behavior, decreased motor skills or other such traits.
To view a checklist that can help you determine and report reasonable suspicion, click here: drug_free_workplace_supervisors_report_of_reasonable_suspicion.doc
An employee who is thought to be under the influence of alcohol or a drug must be removed from the job site and placed on inactive status pending the employer's receipt of notice of the test results. Under no circumstances may the employee be allowed to operate a vehicle or other equipment for any purpose.
The employer who is requiring reasonable suspicion testing must provide transportation for the employee to the testing facility and may send a representative to accompany the employee. The employee has the right to request a representative or designee to be present at the time of testing.
If the test result is positive for drugs or alcohol, the employee must be subject to termination. If the test result is negative, the employee must be placed on active status and put back to work. Following a negative test result, the employee must be paid for all lost time, including all time needed to complete the testing and any overtime according to the employee's contract.
Under the Act, an employer must perform substance abuse testing on any employee who caused, contributed to or was otherwise involved in an accident. The Act defines an accident as an incident that:
- Resulted in death, personal injury or property damage; and
- Occurred while the employee was performing work on a public works project.
Cost of Testing
An employer is responsible for the cost of developing, implementing and enforcing its substance abuse prevention program, including the cost of drug and alcohol testing of its employees under the program, except when these costs are covered under provisions in a collective bargaining agreement.
Employee Access to Projects
An employer must immediately remove an employee from work on a public works project if:
- The employee is found to have used, possessed, distributed, delivered or be under the influence of any drug or alcohol while performing work on a public works project;
- The employee tests positive for a drug or refuses to submit to required drug or alcohol testing; or
- An officer or employee of the contracting agency, preferably one trained to recognize drug and alcohol abuse, has a reasonable suspicion that the employee is under the influence and requests the employer to immediately remove the employee for reasonable suspicion testing.
An employee who is barred or removed from work on a public works project may return to work only after the employer provides to the contracting agency documentation showing all of the following:
- That the employee has tested negative for drugs and is not under the influence of alcohol;
- That the employee has been approved to return to work; and
- Drug and alcohol testing and the handling of test specimens were conducted in accordance with federal guidelines.
Upon successfully completing a rehabilitation program, an employee must be reinstated to his or her former employment status if work for which he or she is qualified exists.
ILLINOIS HUMAN RIGHTS ACT
The Human Rights Act generally applies to employers with 15 or more employees and makes it unlawful for employers to discriminate based on race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation or unfavorable discharge from military service. However, the Act’s prohibitions on disability discrimination apply to all employers.
The Human Rights Act does not encourage, prohibit or authorize drug testing for the illegal use of drugs by job applicants or employees or making employment decisions based on such test results. However, the Act does allow employers to prohibit the illegal use of drugs and alcohol at the workplace by all employees and require employees to comply with all federal regulations regarding alcohol and drug abuse.
In addition, employers may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that the employer holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of the employee.
OTHER DRUG TESTING LAWS
Illinois has numerous drug testing laws for employees or applicants of various industries, such as the Department of State Police, Department of Corrections, carnival workers and bus drivers.
In addition to state law, transportation employees in Illinois, such as drivers of commercial motor vehicles, must comply with federal law. The U.S. Department of Transportation (DOT) Federal Motor Carrier
Safety Administration’s (FMCSA) drug and alcohol testing regulations govern workplace drug testing for these employees. For more information on the FMCSA’s alcohol and drug testing regulations, visit the FMCSA website.
This guide is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. It is provided for general informational purposes only. It broadly summarizes state statutes and regulations generally applicable to private employers, but does not include references to other legal resources unless specifically noted. Readers should contact legal counsel for legal advice.
Please contact Zeiler Insurance Services for more information on drug testing laws in Illinois.
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