Labor & Employment Law Update

When Illinois expanded protections for genetic and biomarker information under the Illinois Genetic Information Privacy Act (GIPA), effective January 1, 2027, observers assumed the law was aimed at genetic testing and medical privacy. However, a close reading of the amendments through SB2886 is forcing some Illinois employers to ask: Did Illinois inadvertently prohibit workplace drug testing?

Probably not. The context of GIPA’s recent amendments strongly suggests workplace drug testing remains lawful in Illinois. The statute repeatedly links biomarker testing with genetic testing, genomic information, and health privacy protections. Plus, the definition of “biomarker” appears limited and does not contemplate including routine workplace drug test result.

Nevertheless, the statutory language is broad enough to create a legal debate. Because the definition of "biomarker" could arguably be read to include certain drug metabolites or other indicators of substance use, employers may face uncertainty until Illinois courts or the legislature provide additional clarification.

What Illinois's New GIPA Biomarker Protections Mean for Employers

GIPA was recently amended to add protections for "biomarker testing" and "biomarkers."

The law defines a biomarker as "a characteristic that is objectively measured and evaluated as an indicator of normal biological processes, pathogenic processes, or pharmacologic responses to a specific therapeutic intervention."

The statute further explains that biomarkers include gene mutations, characteristics of genes, protein expression, and other molecular or genomic indicators.

The law also defines "biomarker testing" as "the analysis of a patient's tissue, blood, or other biospecimen for the presence of a biomarker."

On its face, that language appears somewhat broad.

Could Illinois's New Biomarker Law Restrict Workplace Drug Testing?

Consider a standard workplace drug test. A laboratory analyzes an employee's urine, blood, saliva, or hair sample to determine whether specific drugs or drug metabolites are present. Could those substances qualify as biomarkers?

An argument may be made that they do. After all, a drug metabolite is an objectively measurable characteristic of a person's body. Its presence may indicate that the body has responded to the introduction of a substance. The statutory definition refers to "pharmacologic responses," a phrase that could be read expansively. Under that reading:

• A drug metabolite could be a biomarker.
• A drug test could constitute biomarker testing.
• An employer-required drug test could potentially fall within the statute's restrictions.

That is where things become interesting. Further, nothing in the definition expressly excludes drug metabolites, toxicology screening, or other forms of substance testing.

Why the GIPA Amendments Probably Do Not Ban Illinois Drug Testing Programs

Despite the broad language, there are several reasons why courts would likely reject such an interpretation.

1. Statutory Context Matters

Courts do not interpret individual phrases in isolation.

The biomarker provisions are contained within GIPA, a law historically focused on genetic information, genetic discrimination, and medical privacy. Throughout the statute, "biomarker testing" is repeatedly paired with:

• Genetic testing
• Genetic information
• Gene mutations
• Genetic monitoring

This suggests that the legislature was focused on biological characteristics associated with health care and genetics rather than routine workplace toxicology screening.

2. The Statutory Examples Point Toward a Different Legislative Purpose

The statutory examples include:

• Gene mutations
• Protein expression
• Whole-genome sequencing
• Whole-exome sequencing
• Whole-transcriptome sequencing

These are not traditional employment drug-testing methods.

When a statute lists specific examples, courts often interpret broader language in light of those examples. The examples here strongly suggest that the legislature was concerned with precision medicine, genetic testing, and medical privacy rather than workplace substance testing.

3. The Consequences Would Be Extreme

The statute prohibits employers from requesting or requiring biomarker testing as a condition of employment. It also prohibits employers from taking actions that affect the terms, conditions, or privileges of employment, including termination, because of biomarker testing or biomarkers. Obviously, if ordinary drug tests were deemed biomarker tests, or if positive drug test results were considered biomarkers under GIPA, the consequences would be significant.

Under such an interpretation, employers throughout Illinois would face substantial restrictions on pre-employment, random, reasonable suspicion, and post-incident drug-testing programs. Their ability to maintain drug-free workplace policies would be materially curtailed. The workplace would be less safe for all. Health and safety risks to the public would increase.

Courts are generally reluctant to conclude that a legislature intended to eliminate longstanding employment practices without clearly saying so.

Bottom Line: There is no indication that Illinois lawmakers intended to eliminate workplace drug testing. The better reading is that the legislature intended to protect medical and genetic privacy rather than prohibit workplace drug testing.

Still, the statutory language creates enough ambiguity to invite potential litigation over the scope of the term "biomarker." A creative litigant could try to argue that certain forms of toxicology testing fall within the statute's literal language.