HB3431 102ND GENERAL ASSEMBLY

LRB102 11928 CPF 17264 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB3431

Introduced 2/22/2021, by Rep. Bob Morgan

SYNOPSIS AS INTRODUCED:

410 ILCS 130/50
820 ILCS 55/5	from Ch. 48, par. 2855

Amends the Compassionate Use of Medical Cannabis Program Act. Provides that employers are not prohibited from adopting specified policies concerning medical cannabis by registered qualifying patients, including drug testing policies for such patients working in safety sensitive positions. Unless specified circumstances are met, prohibits employers from taking adverse action against registered qualifying patients who work in non-safety sensitive positions solely due to a positive drug test for medicinal cannabis. Defines "safety sensitive position". Provides that nothing in the Act prohibits an employer from enforcing a preemployment drug testing policy, zero-tolerance drug testing policy, random drug testing policy, or a drug free workplace policy (rather than only a workplace drug policy) or disciplining a registered qualifying patient for violating such a policy, provided that an employer shall not take adverse action against a registered qualifying patient in a non-safety sensitive position solely due to a positive drug test for medical cannabis (rather than due to a positive drug test for cannabis) unless specified criteria are met. Provides that there is not a cause of action for any person against an employer for disciplining or terminating the employment of a registered qualifying patient when enforcing a compliant policy. Makes other changes. Amends the Right to Privacy in the Workplace Act. Provides that the amendatory Act's provisions are an exception to provisions prohibiting an employer from refusing to hire or to discharge or disadvantage any individual because the individual uses lawful products off the premises of the employer during nonworking and non-call hours. Effective immediately.

A BILL FOR

AN ACT concerning health.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Compassionate Use of Medical Cannabis Program Act is amended by changing Section 50 as follows:

(410 ILCS 130/50)

Sec. 50. Employment; employer liability.

(a) Nothing in this Act shall prohibit an employer from adopting a reasonable policy regulations concerning drug testing for, smoking, vaping, consuming, storing, or using medical cannabis by registered the consumption, storage, or timekeeping requirements for qualifying patients related to the use of medical cannabis.

(b) Nothing in this Act shall prohibit an employer from enforcing a preemployment drug testing policy concerning drug testing, zero-tolerance drug testing policy, random drug testing policy, or a drug free workplace provided the policy is applied to registered qualifying patients working in safety sensitive positions in a nondiscriminatory manner.

For purposes of this Section, "safety sensitive position" means any position designated in writing by the employer as a safety sensitive position in which the person performing the position, or duties required of the position, while under the influence of cannabis, may constitute a threat to or endanger the health or safety of themselves or others. "Safety sensitive position" includes, but is not limited to, the following:

(1) A position that requires any of the following:

(A) carrying a firearm;

(B) performing medical procedures, life-threatening procedures, or emergency services;

(C) providing direct child care, direct patient care, or the supervising of such care;

(D) direct responsibility for the safety or security of people, children, animals, or property, or the supervising of someone with that direct responsibility;

(E) working with hazardous or flammable materials, controlled substances, or pharmaceuticals;

(F) access to or control over cash, checks, credit cards, credit card account information, or the authority or ability to commit financial resources of the business or organization, in an amount that is:

(i) set by the business or organization that could detrimentally impact the business or organization with a supporting written explanation;

(ii) $5,000 or more; or

(iii) required of the registered qualifying patient as a standard fidelity bond or an equivalent bond; or

(G) access to or responsibility for sensitive personal identifying information of individuals, including, but not limited to, social security numbers or biometric information.

(2) A position in which a lapse of attention could result in injury, illness, death, or damage to property, including without limitation a position that includes, but need not be limited to, operating, repairing, maintaining, monitoring, or designing equipment, machinery, critical services and infrastructure, aircraft, motorized watercraft, or motor vehicles as part of the position's job duties.

(3) A position wherein undertaking any task under the influence of cannabis could constitute negligence, professional malpractice, or professional misconduct.

(c) Nothing in this Act shall prohibit an employer from enforcing a preemployment drug testing policy, zero-tolerance drug testing policy, random drug testing policy, or a drug free workplace policy or limit an employer from disciplining a registered qualifying patient for violating such a workplace drug policy, provided that an employer shall not take adverse action against a registered qualifying patient in a non-safety sensitive position solely due to a positive drug test for medical cannabis, unless: .

(1) the test result exceeds the limits set forth in Section 11-501.2 of the Illinois Vehicle Code;

(2) the registered qualifying patient failed to provide written notice under the employer's policy that:

(A) the registered qualifying patient was cleared to work; or

(B) a restriction regarding notification of the use of a prescription or nonprescription drug that could affect the registered qualifying patient's job performance applies to the registered qualifying patient; or

(3) the registered qualifying patient failed to certify to his or her employer or the employer's medical review officer during a drug test that he or she is a registered qualifying patient.

Notice under this subsection shall not require the registered qualifying patient to provide the condition for which he or she is using medical cannabis.

(d) Nothing in this Act shall limit an employer's ability to discipline a registered qualifying patient an employee for failing a drug test if failing to do so would put the employer in violation of federal law or cause it to lose a federal contract or funding.

(e) Nothing in this Act shall be construed to create a defense for a third party who fails a drug test.

(f) An employer may consider a registered qualifying patient to be impaired when he or she tests positive for cannabis that exceeds the limits set forth in Section 11-501.2 of the Illinois Vehicle Code, or manifests specific, articulable symptoms while working that decrease or lessen his or her performance of the duties or tasks of the registered qualifying patient's employee's job position, including symptoms of the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, negligence or carelessness in operating equipment or machinery, disregard for the safety of the registered qualifying patient employee or others, or involvement in an accident that results in serious damage to equipment or property, disruption of a production or manufacturing process, or carelessness that results in any injury to the registered qualifying patient employee or others. If an employer elects to discipline a registered qualifying patient under this subsection, it must afford the registered qualifying patient employee a reasonable opportunity to contest the basis of the determination.

(g) Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for: (1) actions based on the employer's good faith belief that a registered qualifying patient used or possessed cannabis while on the employer's premises or during the hours of employment; (2) actions based on the employer's good faith belief that a registered qualifying patient was impaired while working on the employer's premises during the hours of employment; (3) disciplining or terminating the employment of a registered qualifying patient when enforcing a drug policy in compliance with this Section; or (4) (3) injury or loss to a third party if the employer neither knew nor had reason to know that the employee was impaired.

(h) Nothing in this Act shall be construed to interfere with any federal restrictions on employment including but not limited to the United States Department of Transportation regulation 49 CFR 40.151(e).

(Source: P.A. 98-122, eff. 1-1-14.)

Section 10. The Right to Privacy in the Workplace Act is amended by changing Section 5 as follows:

(820 ILCS 55/5) (from Ch. 48, par. 2855)

Sec. 5. Discrimination for use of lawful products prohibited.

(a) Except as otherwise specifically provided by law, including Section 10-50 of the Cannabis Regulation and Tax Act and Section 50 of the Compassionate Use of Medical Cannabis Program Act, and except as provided in subsections (b) and (c) of this Section, it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking and non-call hours. As used in this Section, "lawful products" means products that are legal under state law. For purposes of this Section, an employee is deemed on-call when the employee is scheduled with at least 24 hours' notice by his or her employer to be on standby or otherwise responsible for performing tasks related to his or her employment either at the employer's premises or other previously designated location by his or her employer or supervisor to perform a work-related task.

(b) This Section does not apply to any employer that is a non-profit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public. This Section does not apply to the use of those lawful products which impairs an employee's ability to perform the employee's assigned duties.

(c) It is not a violation of this Section for an employer to offer, impose or have in effect a health, disability or life insurance policy that makes distinctions between employees for the type of coverage or the price of coverage based upon the employees' use of lawful products provided that:

(1) differential premium rates charged employees reflect a differential cost to the employer; and

(2) employers provide employees with a statement delineating the differential rates used by insurance carriers.

(Source: P.A. 101-27, eff. 6-25-19.)

Section 99. Effective date. This Act takes effect upon becoming law.