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

HB4116ham002 102ND GENERAL ASSEMBLY

Rep. Bob Morgan

Filed: 2/14/2022

 

 


 

 


 
10200HB4116ham002LRB102 19297 SPS 36265 a

1
AMENDMENT TO HOUSE BILL 4116

2    AMENDMENT NO. ______. Amend House Bill 4116 by replacing
3everything after the enacting clause with the following:
 
4    "(410 ILCS 705/10-50 rep.)
5    Section 5. The Cannabis Regulation and Tax Act is amended
6by repealing Section 10-50.
 
7    Section 10. The Right to Privacy in the Workplace Act is
8amended by changing Section 5 as follows:
 
9    (820 ILCS 55/5)  (from Ch. 48, par. 2855)
10    Sec. 5. Discrimination for use of lawful products
11prohibited.
12    (a) Except as otherwise specifically provided by law,
13including Section 10-50 of the Cannabis Regulation and Tax
14Act, and except as provided in subsections (a-5), (b), and
15(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    Nothing in this Act prohibits an employer from enforcing a
19pre-employment drug testing policy, random drug testing
20policy, or zero-tolerance or drug-free workplace policy or
21from disciplining an employee or withdrawing a job offer from
22an applicant for violating such a policy with respect to an
23employee in a safety sensitive position as defined in
24subsection (a-5).
25    (a-5) As used in this Section: ,
26        (1) "Lawful lawful products" means products that are

 

 

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1    legal for the employee to use under state law.
2        (2) "Workplace" means the employer's premises,
3    including any building, real property, and parking area
4    under the control of the employer or area used by an
5    employee while in the performance of the employee's job
6    duties.
7        (3) "On-call" means For purposes of this Section, an
8    employee is deemed on-call when the employee is scheduled
9    with at least 24 hours' notice by his or her employer to be
10    on standby or otherwise responsible for performing tasks
11    related to his or her employment either at the employer's
12    workplace premises or other previously designated location
13    by his or her employer or supervisor to perform a
14    work-related task.
15        (4) "Safety sensitive position" means a position that
16    meets all of the following requirements:
17            (A) is designated as a safety sensitive position
18        in writing by the employer;
19            (B) requires tasks and duties that could
20        reasonably result in injury, illness, death, or damage
21        to property if the person performing them is under the
22        influence of tetrahydrocannabinol; and
23            (C) requires one or more of the following
24        responsibilities:
25                (i) carrying a firearm;
26                (ii) performing medical procedures or

 

 

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1            emergency services;
2                (iii) working with hazardous or flammable
3            materials, controlled substances, or
4            pharmaceuticals;
5                (iv) working around heavy machinery in a
6            retail distribution center; or
7                (v) operating, repairing, maintaining,
8            monitoring, or designing one or more of the
9            following: (I) heavy machinery; (II) aircraft;
10            (III) motorized watercrafts; (IV) motor vehicles;
11            or (V) critical services and infrastructure. As
12            used in this subparagraph, "critical services and
13            infrastructure" means physical and cyber systems
14            and assets that are so vital to the State that
15            their incapacity or destruction would have a
16            debilitating impact on physical or economic
17            security, public health, or safety.
18        (5) "Retail distribution center" means a distribution
19    center where products are received and temporarily stored
20    and where orders for products are packaged or repackaged
21    for distribution to resellers, wholesalers, or consumers.
22    "Retail distribution center" does not mean a warehouse
23    used only for purposes of storing products.
24    (b) This Section does not apply to any employer that is a
25non-profit organization that, as one of its primary purposes
26or objectives, discourages the use of one or more lawful

 

 

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1products by the general public. This Section does not apply to
2the use of those lawful products which impairs an employee's
3ability to perform the employee's assigned duties.
4    (c) It is not a violation of this Section for an employer
5to offer, impose or have in effect a health, disability or life
6insurance policy that makes distinctions between employees for
7the type of coverage or the price of coverage based upon the
8employees' use of lawful products provided that:
9        (1) differential premium rates charged employees
10    reflect a differential cost to the employer; and
11        (2) employers provide employees with a statement
12    delineating the differential rates used by insurance
13    carriers.
14    (d) Nothing in this Act limits an employer's ability to
15withdraw a job offer from an applicant or discipline an
16employee for failing a drug test if failing to do so would put
17the employer in violation of federal or State law or cause it
18to lose a federal or State contract or funding.
19    (e) Nothing in this Act shall be construed to create a
20defense for a third party who fails a drug test.
21    (f) An employer may consider an applicant or employee to
22be impaired when:
23        (1) he or she tests positive for tetrahydrocannabinol
24    at a level that meets or exceeds the legal limits set forth
25    in Section 11-501.2 of the Illinois Vehicle Code; or
26        (2) manifests specific, articulable symptoms or

 

 

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1    behavior while working that decrease or lessen his or her
2    performance of the duties or tasks of the employee's job
3    position, including manifestations of the employee's
4    speech, physical dexterity, agility, coordination,
5    demeanor, irrational or unusual behavior, negligence or
6    carelessness in operating equipment or machinery,
7    disregard for the safety of the employee or others,
8    involvement in an accident that results in serious damage
9    to equipment or property, disruption of a production or
10    manufacturing process, or carelessness that results in any
11    injury to the employee or others.
12    If an employer elects to withdraw a job offer from an
13applicant or discipline an employee because the employer
14considers the applicant or employee to be impaired, it must
15afford the applicant or employee a reasonable opportunity to
16contest the basis of the determination.
17    (g) Nothing in this Act shall be construed to create or
18imply a cause of action for any person against an employer for:
19        (1) actions based on the employer's good faith belief
20    that an employee used or possessed tetrahydrocannabinol
21    while at the employer's workplace or during the hours of
22    employment;
23        (2) actions based on the employer's good faith belief
24    that an employee was impaired while working, while working
25    at the employer's workplace during the hours of
26    employment;

 

 

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1        (3) discipline or termination of the employment of an
2    employee or withdrawal of a job offer from an applicant
3    when enforcing a drug policy that complies with this
4    Section; or
5        (4) injury or loss to a third party if the employer
6    neither knew nor had reason to know that the employee was
7    impaired.
8    (h) Nothing in this Act shall be construed to interfere
9with any federal restrictions on employment, including, but
10not limited to, the United States Department of Transportation
11regulation 49 CFR 40.151(e).
12    (i) Nothing in this Act shall be construed to interfere
13with the application of the Illinois Workers' Compensation
14Act, specifically, but without limitation, Section 11 of the
15Workers' Compensation Act, the Workers' Occupational Diseases
16Act, or the rules of practice before the Illinois Workers'
17Compensation Commission.
18(Source: P.A. 101-27, eff. 6-25-19.)".