Drug and alcohol testing have varied uses. Most commonly, they are used for:
- Pre-employment and employment screening
- DOT testing
- Custody disputes
- Forensic DNA
- Drug and alcohol abstinence programs
Despite the many uses of drug and alcohol testing, in Illinois, very few statutes exist that regulate drug and alcohol testing. ARCpoint Labs of Elk Grove Village has the details on the rules that are in place.
Illinois Laws on Drug and Alcohol Testing
Drug-Free Workplace Act
The state’s Drug-Free Workplace Act (30 ILCS 580/1, et seq), requires employers with 25 or more employees who are awarded a state contract or grant for more than $5,000.00 to have a drug–free workplace in place. The program must meet the specific requirements provided by the state.
Drug and alcohol testing is not one of the mandatory components of a drug free workplace program. Both state and federal laws do require covered employers to:
- Publish as statement announcing the drug-free workplace policy
- Post and distribute the notice/statement to all employees involved in contract or grant work with the state/federal government
- Establish a drug free awareness program to inform employees of potential penalties, available counseling, and dangers of drugs in the workplace
- Notify the contracting or granting agency of any criminal drug convictions of employees
- Impose penalties or require employees to complete a rehab program in response to any such convictions
- Assist employees if drug counseling, treatment and rehab are required
- Make a good faith effort at maintaining a drug free workplace
The Substance Abuse Prevention on Public Works Projects Act (Public Act 095-0635, requires that employees performing work on a public works project submit to pre-hire, random, reasonable suspicion and post – accident drug and alcohol testing. At a minimum, a 9 panel urine drug test, plus a test for alcohol is used. Blood is only tested post-accident.
Illinois statutes pertaining to Worker’s Compensation provide that no compensation shall be payable if the “employee’s intoxication is the proximate cause of the employee’s accidental injury or (ii) at the time the employee incurred the accidental injury, the employee was so intoxicated that the intoxication constituted a departure from the employment (Public Act 097).
The statute provides that any employee testing positive for alcohol in excess of 0.08 BAC or for any other unauthorized drug use, will be presumed intoxicated and that intoxication shall be presumed to the be the main cause of the injuries. Any drug and alcohol testing must be conducted according to the guidelines set forth by the National Labor Relations Board or the Department of Transportation. If an employee chooses not to take the test, s/he is guilty of being inebriated on the job, but does have the right to appeal. (It should also be noted that in many states, employers with a strong drug free workplace program may receive a discount on their worker’s compensation insurance).
Employer Drug Testing
Pursuant to 820 ILCS 235/1, an employer may require a prospective employee or current employee to submit to drug testing; however, the employer is responsible for the cost of the test. Pursuant to 775 ILCS 5/2-104©, employees or applicants who use illegal drugs are not defined as “handicapped.” However, this shall not apply when the employee/applicant has completed a rehabilitation program and is no longer using. However, it is not illegal under this act for an employer to adopt or administer reasonable policies or procedures, including but not limited to drug and alcohol testing. Employers may prohibit the use of drugs and alcohol in the workplace, may prohibit employees from being under the influence while at work, and require that employees behave in conformance with the requirements under the federal Drug-Fee Workplace Act of 1988 (41 USC 701 et seq.) and the Drug Free Workplace Act.
Cheating a Drug and Alcohol Test
Illinois law also provides that it is unlawful to a person to attempt to defraud a drug and alcohol screening. Pursuant to 720 ILCS 5/17, it is illegal for a person to:
- Transport urine into the state with the intent of using the product to defraud a drug or alcohol screening test;
- Attempt to defeat a drug or alcohol screening test by spiking the sample or by advertising samples that can be used to substitute or spike the donor sample;
- Adulterate synthetic or human substances in an attempt to defraud a drug or alcohol screening test;
- Manufacture, sell, or possess adulterants that are intended to be used for the purpose of defrauding a drug or alcohol screening test.
Supreme Court Rule 215
Illinois Supreme Court Rule 215 allows for the physical or mental examination of a litigant. Drug and alcohol testing is permissible pursuant to that rule.
Federal law does not have a comprehensive regulatory system for drug and alcohol testing, but does provide for specific agencies to adopt drug testing regulations. For example:
- The Drug Free Workplace Act of 1988 requires some Federal contractors and all federal grantees to agree to provide drug-fee workplaces as a condition of receiving a contract or grant from a Federal agency.
- The Department of Defense requires defense contractors to set up procedures for identifying drug users, including random testing.
- The Federal Omnibus Transportation Employee Testing Act of 1999 (OTETA) requires drug and alcohol testing for all operators of aircraft, railroad equipment, mass transportation, vehicles and commercial motor vehicles.
- The Department of Transportation publishes very specific guidelines on who must be tested, what must be tested and what procedures to follow when testing. While Illinois law has not adopted these federal statutes, they do apply to any employer located within the state who does business with the above agencies (or any other federal agency with specific drug free workplace policies). Note that a drug-free workplace policy does not necessarily mean that drug testing must be conducted; it merely means that the workplace must be drug-free. That however, does not preclude a federal agency from requiring drug testing.
Stay tuned for our next post in which we’ll explore medical marijuana laws in Illinois and cover why ARCpoint Labs is the perfect partner for your drug-free workplace program!