HB4116 102ND GENERAL ASSEMBLY

LRB102 19297 KTG 28063 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB4116

Introduced 9/3/2021, by Rep. Bob Morgan - Kambium Buckner - Kelly M. Cassidy

SYNOPSIS AS INTRODUCED:

820 ILCS 55/5

from Ch. 48, par. 2855

Amends the Right to Privacy in the Workplace Act. Provides that an employer may not refuse to hire an individual or discipline an employee because results of an individual's drug test indicate the presence of THC on the part of that individual. Permits an employer to enforce a pre-employment drug testing policy, zero-tolerance drug testing policy, random drug testing policy, or a drug-free workplace policy or disciplining an employee for violating such policy, but provides than an employer may not take adverse action against an employee solely because of a positive drug test for cannabis unless the test result exceeds limits set forth in certain DUI provisions of the Illinois Vehicle Code. Sets forth conditions under which an employer may discipline an employee for impairment. Provides that there is not a cause of action for any person against an employer for disciplining or terminating the employment of an individual when enforcing a compliant policy. Effective immediately.

A BILL FOR

AN ACT concerning employment.

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

Section 5. 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 except as provided in subsections (b) and (c) of this Section, it shall be unlawful for an employer to refuse to hire or to discipline or 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 or because results of an individual's drug test indicates the presence of tetrahydrocannabinol. 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.

(d) Nothing in this Act prohibits an employer from enforcing a pre-employment drug testing policy, zero-tolerance drug testing policy, random drug testing policy, or a drug-free workplace policy or from disciplining an employee for violating such policy. An employer, however, may not take adverse action against an employee solely because of a positive drug test for cannabis unless the test result exceeds the limits set forth in Section 11-501.2 of the Illinois Vehicle Code.

(e) Nothing in this Act limits an employer's ability to discipline 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.

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

(g) An employer may consider an employee 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 or behavior while working that decrease or lessen his or her performance of the duties or tasks of the employee's job position, including manifestations 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 employee or others, 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 employee or others. If an employer elects to discipline an employee under this subsection, it must afford the employee a reasonable opportunity to contest the basis of the determination.

(h) 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 an employee 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 an employee was impaired while working on the employer's premises during the hours of employment;

(3) discipline or termination of the employment of an employee when enforcing a drug policy that complies with this Section; or

(4) injury or loss to a third party if the employer neither knew nor had reason to know that the employee was impaired.

(i) 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. 101-27, eff. 6-25-19.)

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