HB4116ham001 102ND GENERAL ASSEMBLY

Rep. Bob Morgan

Filed: 1/27/2022

10200HB4116ham001 LRB102 19297 SPS 34180 a

AMENDMENT TO HOUSE BILL 4116

AMENDMENT NO. ______. Amend House Bill 4116 by replacing everything after the enacting clause with the following:

"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), (d), (e), (f), (g), (h), (i), and (j) 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 away from off the premises of the employer's workplace employer during nonworking and non-call hours or because the results of an individual's drug test indicate the presence of tetrahydrocannabinol, unless the employee works in a safety sensitive position, unless the employee demonstrates impairment as defined in this Act, or unless the test results for tetrahydrocannabinol exceeds the limits set forth in Section 11-501.2 of the Illinois Vehicle Code.

(a-5) As used in this Section: ,

(1) "Lawful lawful products" means products that are legal under state law.

(2) "Workplace" means the employer's premises, including any building, real property, and parking area under the control of the employer or area used by an employee while in the performance of the employee's job duties.

(3) "On-call" means 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 workplace premises or other previously designated location by his or her employer or supervisor to perform a work-related task.

(4) "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 tetrahydrocannabinol, may constitute a threat to or endanger the health or safety of the person or others.

"Safety sensitive position" includes 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; or

(C) working with hazardous or flammable materials, controlled substances, or pharmaceuticals.

(2) A position in which a lapse of attention could result in injury, illness, death, or damage to property, including, without limitation, a position 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.

(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, random drug testing policy, or a drug-free workplace policy or from disciplining an employee or withdrawing a job offer to an applicant for violating such policy if the policy is applied to employees working in safety sensitive positions. An employer, however, may not take adverse action against an employee solely because of a positive drug test for tetrahydrocannabinol 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 applicant or employee to be impaired when he or she tests positive for tetrahydrocannabinol 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 withdraw a job offer from an applicant or discipline an employee under this subsection, it must afford the applicant or 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 tetrahydrocannabinol while at the employer's workplace or during the hours of employment;

(2) actions based on the employer's good faith belief that an employee was impaired while working, while working at the employer's workplace during the hours of employment;

(3) discipline or termination of the employment of an employee or withdrawal of a job offer from an applicant 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.)".