Illinois General Assembly - Full Text of HB4116
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Full Text of HB4116  102nd General Assembly

HB4116eng 102ND GENERAL ASSEMBLY

  
  
  

 


 
HB4116 EngrossedLRB102 19297 KTG 28063 b

1    AN ACT concerning employment.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Cannabis Regulation and Tax Act is amended
5by changing Section 10-50 as follows:
 
6    (410 ILCS 705/10-50)
7    Sec. 10-50. Employment; employer liability.
8    (a) Nothing in this Act shall prohibit an employer from
9adopting reasonable zero tolerance or drug free workplace
10policies, or employment policies concerning drug testing,
11smoking, consumption, storage, or use of cannabis in the
12workplace or while on call provided that the policy is applied
13in a nondiscriminatory manner.
14    (b) Nothing in this Act shall require an employer to
15permit an employee to be under the influence of or use cannabis
16in the employer's workplace or while performing the employee's
17job duties or while on call.
18    (c) Nothing in this Act shall limit or prevent an employer
19from disciplining an employee or terminating employment of an
20employee for violating an employer's employment policies or
21workplace drug policy.
22    (d) An employer may consider an employee to be impaired or
23under the influence of cannabis if the employer has a good

 

 

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1faith belief that an employee manifests specific, articulable
2symptoms while working that decrease or lessen the employee's
3performance of the duties or tasks of the employee's job
4position, including symptoms of the employee's speech,
5physical dexterity, agility, coordination, demeanor,
6irrational or unusual behavior, or negligence or carelessness
7in operating equipment or machinery; disregard for the safety
8of the employee or others, or involvement in any accident that
9results in serious damage to equipment or property; disruption
10of a production or manufacturing process; or carelessness that
11results in any injury to the employee or others. If an employer
12elects to discipline an employee on the basis that the
13employee is under the influence or impaired by cannabis, the
14employer must afford the employee a reasonable opportunity to
15contest the basis of the determination.
16    (e) Nothing in this Act shall be construed to create or
17imply a cause of action under this Act for any person against
18an employer for:
19        (1) actions taken pursuant to an employer's reasonable
20    workplace drug policy that complies with the Right to
21    Privacy in the Workplace Act , including but not limited
22    to subjecting an employee or applicant to reasonable drug
23    and alcohol testing, reasonable and nondiscriminatory
24    random drug testing, and discipline, termination of
25    employment, or withdrawal of a job offer due to a failure
26    of a drug test;

 

 

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1        (2) actions based on the employer's good faith belief
2    that an employee used or possessed cannabis in the
3    employer's workplace or while performing the employee's
4    job duties or while on call in violation of the employer's
5    employment policies;
6        (3) actions, including discipline or termination of
7    employment, based on the employer's good faith belief that
8    an employee was impaired as a result of the use of
9    cannabis, or under the influence of cannabis, while at the
10    employer's workplace or while performing the employee's
11    job duties or while on call in violation of the employer's
12    workplace drug policy; or
13        (4) injury, loss, or liability to a third party if the
14    employer neither knew nor had reason to know that the
15    employee was impaired.
16    (f) Nothing in this Act shall be construed to enhance or
17diminish protections afforded by any other law, including but
18not limited to the Compassionate Use of Medical Cannabis
19Program Act or the Opioid Alternative Pilot Program.
20    (g) Nothing in this Act shall be construed to interfere
21with any federal, State, or local restrictions on employment
22including, but not limited to, the United States Department of
23Transportation regulation 49 CFR 40.151(e) or impact an
24employer's ability to comply with federal or State law or
25cause it to lose a federal or State contract or funding.
26    (h) As used in this Section, "workplace" means the

 

 

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1employer's premises, including any building, real property,
2and parking area under the control of the employer or area used
3by an employee while in the performance of the employee's job
4duties, and vehicles, whether leased, rented, or owned.
5"Workplace" may be further defined by the employer's written
6employment policy, provided that the policy is consistent with
7this Section.
8    (i) For purposes of this Section, an employee is deemed
9"on call" when such employee is scheduled with at least 24
10hours' notice by his or her employer to be on standby or
11otherwise responsible for performing tasks related to his or
12her employment either at the employer's premises or other
13previously designated location by his or her employer or
14supervisor to perform a work-related task.
15(Source: P.A. 101-27, eff. 6-25-19; 101-593, eff. 12-4-19.)
 
16    Section 10. The Right to Privacy in the Workplace Act is
17amended by changing Section 5 as follows:
 
18    (820 ILCS 55/5)  (from Ch. 48, par. 2855)
19    Sec. 5. Discrimination for use of lawful products
20prohibited.
21    (a) Except as otherwise specifically provided by law,
22including Section 10-50 of the Cannabis Regulation and Tax
23Act, and except as provided in subsections (a-5), (b), and
24(c), (d), (e), (f), (g), (h), and (i) of this Section, it shall

 

 

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1be unlawful for an employer to refuse to hire or to discharge
2any individual, or otherwise disadvantage any individual, with
3respect to compensation, terms, conditions or privileges of
4employment because:
5        (1) the individual uses lawful products off the
6    premises of the employer's workplace employer during
7    nonworking hours and hours the individual is not on-call
8    non-call hours ; or .
9        (2) the results of an individual's drug test indicate
10    the presence of tetrahydrocannabinol, unless:
11            (A) the employee works in a safety sensitive
12        position;
13            (B) the applicant or employee demonstrates
14        impairment as provided in subsection (f); or
15            (C) the test results for tetrahydrocannabinol
16        meets or exceeds the legal limits set forth in Section
17        11-501.2 of the Illinois Vehicle Code.
18    Except as provided in paragraphs (1) and (2), nothing in
19this Act prohibits an employer from (i) enforcing a
20pre-employment drug testing policy, random drug testing
21policy, or zero-tolerance or drug-free workplace policy or
22from disciplining an employee or withdrawing a job offer from
23an applicant for violating such a policy; (ii) disciplining or
24discharging an employee whose use of a lawful product
25adversely affects or impairs the employee's job performance,
26conduct, or ability to safely perform the assigned job duties

 

 

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1in the employer's workplace during working hours or hours the
2individual is on call; or (iii) implementing and enforcing
3workplace policies regarding the possession, use, or
4impairment of lawful products in the employer's workplace
5during working hours or hours the individual is on call.
6    (a-5) As used in this Section: ,
7        (1) "Lawful lawful products" means products that are
8    legal for the employee to use under state law.
9        (2) "Workplace" means the employer's premises,
10    including any building, real property, and parking area
11    under the control of the employer or area used by an
12    employee while in the performance of the employee's job
13    duties.
14        (3) "On-call" means For purposes of this Section, an
15    employee is deemed on-call when the employee is scheduled
16    with at least 24 hours' notice by his or her employer to be
17    on standby or otherwise responsible for performing tasks
18    related to his or her employment either at the employer's
19    workplace premises or other previously designated location
20    by his or her employer or supervisor to perform a
21    work-related task.
22        (4) "Safety sensitive position" means a position that
23    meets all of the following requirements:
24            (A) is designated as a safety sensitive position
25        in writing by the employer;
26            (B) requires tasks and duties that could

 

 

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1        reasonably result in injury, illness, death, or damage
2        to property if the person performing them is under the
3        influence of tetrahydrocannabinol; and
4            (C) requires one or more of the following
5        responsibilities:
6                (i) carrying a firearm or working for a law
7            enforcement agency in a capacity that impacts the
8            safety of others;
9                (ii) performing medical procedures or
10            emergency services;
11                (iii) working with hazardous or flammable
12            materials, controlled substances, or
13            pharmaceuticals;
14                (iv) working around heavy machinery in a
15            retail distribution center; or
16                (v) operating, repairing, maintaining,
17            monitoring, or designing one or more of the
18            following: (I) heavy machinery; (II) aircraft;
19            (III) motorized watercrafts; (IV) motor vehicles;
20            or (V) critical services and infrastructure. As
21            used in this subparagraph, "critical services and
22            infrastructure" means physical and cyber systems
23            and assets that are so vital to the public that
24            their incapacity, compromise, or destruction would
25            have a debilitating impact on physical or economic
26            security, public health, or safety.

 

 

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1        (5) "Retail distribution center" means a distribution
2    center where products are received and temporarily stored
3    and where orders for products are packaged or repackaged
4    for distribution to resellers, wholesalers, or consumers.
5    "Retail distribution center" does not mean a warehouse
6    used only for purposes of storing products.
7    (b) This Section does not apply to any employer that is a
8non-profit organization that, as one of its primary purposes
9or objectives, discourages the use of one or more lawful
10products by the general public. This Section does not apply to
11the use of those lawful products which impairs an employee's
12ability to perform the employee's assigned duties.
13    (c) It is not a violation of this Section for an employer
14to offer, impose or have in effect a health, disability or life
15insurance policy that makes distinctions between employees for
16the type of coverage or the price of coverage based upon the
17employees' use of lawful products provided that:
18        (1) differential premium rates charged employees
19    reflect a differential cost to the employer; and
20        (2) employers provide employees with a statement
21    delineating the differential rates used by insurance
22    carriers.
23    (d) Nothing in this Act limits an employer's ability to
24withdraw a job offer from an applicant or discipline an
25employee for failing a drug test if failing to do so would put
26the employer in violation of federal or State law or cause it

 

 

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1to lose a federal or State contract or funding.
2    (e) Nothing in this Act shall be construed to create a
3defense for a third party who fails a drug test.
4    (f) An employer may consider an applicant or employee to
5be impaired when:
6        (1) he or she tests positive for tetrahydrocannabinol
7    at a level that meets or exceeds the legal limits set forth
8    in Section 11-501.2 of the Illinois Vehicle Code; or
9        (2) manifests specific, articulable symptoms or
10    behavior while working that decrease or lessen his or her
11    performance of the duties or tasks of the employee's job
12    position, including manifestations of the employee's
13    speech, physical dexterity, agility, coordination,
14    demeanor, irrational or unusual behavior, negligence or
15    carelessness in operating equipment or machinery,
16    disregard for the safety of the employee or others,
17    involvement in an accident that results in serious damage
18    to equipment or property, disruption of a production or
19    manufacturing process, or carelessness that results in any
20    injury to the employee or others.
21    If an employer elects to withdraw a job offer from an
22applicant or discipline an employee because the employer
23considers the applicant or employee to be impaired, it must
24afford the applicant or employee a reasonable opportunity to
25contest the basis of the determination.
26    (g) Nothing in this Act shall be construed to create or

 

 

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1imply a cause of action for any person against an employer for:
2        (1) actions based on the employer's good faith belief
3    that an employee used or possessed tetrahydrocannabinol
4    while at the employer's workplace or during the hours of
5    employment;
6        (2) actions based on the employer's good faith belief
7    that an employee was impaired while working, while working
8    at the employer's workplace during the hours of
9    employment;
10        (3) discipline or termination of the employment of an
11    employee or withdrawal of a job offer from an applicant
12    when enforcing a drug policy that complies with this
13    Section; or
14        (4) injury or loss to a third party if the employer
15    neither knew nor had reason to know that the employee was
16    impaired.
17    (h) Nothing in this Act shall be construed to interfere
18with any federal restrictions on employment, including, but
19not limited to, the United States Department of Transportation
20regulation 49 CFR 40.151(e).
21    (i) Nothing in this Act shall be construed to interfere
22with the application of the Illinois Workers' Compensation
23Act, specifically, but without limitation, Section 11 of the
24Workers' Compensation Act, the Workers' Occupational Diseases
25Act, or the rules of practice before the Illinois Workers'
26Compensation Commission.

 

 

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