HB4116 Engrossed LRB102 19297 KTG 28063 b
1		AN ACT concerning employment.
2		Be it enacted by the People of the State of Illinois,
3		represented in the General Assembly:
4		Section 5. The Cannabis Regulation and Tax Act is amended
5		by 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
9		adopting reasonable zero tolerance or drug free workplace
10		policies, or employment policies concerning drug testing,
11		smoking, consumption, storage, or use of cannabis in the
12		workplace or while on call provided that the policy is applied
13		in a nondiscriminatory manner.
14		(b) Nothing in this Act shall require an employer to
15		permit an employee to be under the influence of or use cannabis
16		in the employer's workplace or while performing the employee's
17		job duties or while on call.
18		(c) Nothing in this Act shall limit or prevent an employer
19		from disciplining an employee or terminating employment of an
20		employee for violating an employer's employment policies or
21		workplace drug policy.
22		(d) An employer may consider an employee to be impaired or
23		under the influence of cannabis if the employer has a good

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1		faith belief that an employee manifests specific, articulable
2		symptoms while working that decrease or lessen the employee's
3		performance of the duties or tasks of the employee's job
4		position, including symptoms of the employee's speech,
5		physical dexterity, agility, coordination, demeanor,
6		irrational or unusual behavior, or negligence or carelessness
7		in operating equipment or machinery; disregard for the safety
8		of the employee or others, or involvement in any accident that
9		results in serious damage to equipment or property; disruption
10		of a production or manufacturing process; or carelessness that
11		results in any injury to the employee or others. If an employer
12		elects to discipline an employee on the basis that the
13		employee is under the influence or impaired by cannabis, the
14		employer must afford the employee a reasonable opportunity to
15		contest the basis of the determination.
16		(e) Nothing in this Act shall be construed to create or
17		imply a cause of action under this Act for any person against
18		an 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
17		diminish protections afforded by any other law, including but
18		not limited to the Compassionate Use of Medical Cannabis
19		Program Act or the Opioid Alternative Pilot Program.
20		(g) Nothing in this Act shall be construed to interfere
21		with any federal, State, or local restrictions on employment
22		including, but not limited to, the United States Department of
23		Transportation regulation 49 CFR 40.151(e) or impact an
24		employer's ability to comply with federal or State law or
25		cause it to lose a federal or State contract or funding.
26		(h) As used in this Section, "workplace" means the

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1		employer's premises, including any building, real property,
2		and parking area under the control of the employer or area used
3		by an employee while in the performance of the employee's job
4		duties, and vehicles, whether leased, rented, or owned.
5		"Workplace" may be further defined by the employer's written
6		employment policy, provided that the policy is consistent with
7		this Section.
8		(i) For purposes of this Section, an employee is deemed
9		"on call" when such employee is scheduled with at least 24
10		hours' notice by his or her employer to be on standby or
11		otherwise responsible for performing tasks related to his or
12		her employment either at the employer's premises or other
13		previously designated location by his or her employer or
14		supervisor 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
17		amended 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
20		prohibited.
21		(a) Except as otherwise specifically provided by law,
22		including Section 10-50 of the Cannabis Regulation and Tax
23		Act, 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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1		be unlawful for an employer to refuse to hire or to discharge
2		any individual, or otherwise disadvantage any individual, with
3		respect to compensation, terms, conditions or privileges of
4		employment 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
19		this Act prohibits an employer from (i) enforcing a
20		pre-employment drug testing policy, random drug testing
21		policy, or zero-tolerance or drug-free workplace policy or
22		from disciplining an employee or withdrawing a job offer from
23		an applicant for violating such a policy; (ii) disciplining or
24		discharging an employee whose use of a lawful product
25		adversely affects or impairs the employee's job performance,
26		conduct, or ability to safely perform the assigned job duties

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1		in the employer's workplace during working hours or hours the
2		individual is on call; or (iii) implementing and enforcing
3		workplace policies regarding the possession, use, or
4		impairment of lawful products in the employer's workplace
5		during 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
8		non-profit organization that, as one of its primary purposes
9		or objectives, discourages the use of one or more lawful
10		products by the general public. This Section does not apply to
11		the use of those lawful products which impairs an employee's
12		ability to perform the employee's assigned duties.
13		(c) It is not a violation of this Section for an employer
14		to offer, impose or have in effect a health, disability or life
15		insurance policy that makes distinctions between employees for
16		the type of coverage or the price of coverage based upon the
17		employees' 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
24		withdraw a job offer from an applicant or discipline an
25		employee for failing a drug test if failing to do so would put
26		the employer in violation of federal or State law or cause it

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1		to lose a federal or State contract or funding.
2		(e) Nothing in this Act shall be construed to create a
3		defense for a third party who fails a drug test.
4		(f) An employer may consider an applicant or employee to
5		be 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
22		applicant or discipline an employee because the employer
23		considers the applicant or employee to be impaired, it must
24		afford the applicant or employee a reasonable opportunity to
25		contest the basis of the determination.
26		(g) Nothing in this Act shall be construed to create or

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1		imply 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
18		with any federal restrictions on employment, including, but
19		not limited to, the United States Department of Transportation
20		regulation 49 CFR 40.151(e).
21		(i) Nothing in this Act shall be construed to interfere
22		with the application of the Illinois Workers' Compensation
23		Act, specifically, but without limitation, Section 11 of the
24		Workers' Compensation Act, the Workers' Occupational Diseases
25		Act, or the rules of practice before the Illinois Workers'
26		Compensation Commission.

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