Rep. Bob Morgan
Filed: 2/14/2022
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| 1 | AMENDMENT TO HOUSE BILL 4116
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| 2 | AMENDMENT NO. ______. Amend House Bill 4116 by replacing | ||||||
| 3 | everything after the enacting clause with the following:
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| 4 | "(410 ILCS 705/10-50 rep.) | ||||||
| 5 | Section 5. The Cannabis Regulation and Tax Act is amended | ||||||
| 6 | by repealing Section 10-50.
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| 7 | Section 10. The Right to Privacy in the Workplace Act is | ||||||
| 8 | amended by changing Section 5 as follows:
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| 9 | (820 ILCS 55/5) (from Ch. 48, par. 2855)
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| 10 | Sec. 5. Discrimination for use of lawful products | ||||||
| 11 | prohibited.
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| 12 | (a) Except as otherwise specifically provided by law, | ||||||
| 13 | including Section 10-50 of the Cannabis Regulation and Tax | ||||||
| 14 | Act, 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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| 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 | Nothing in this Act prohibits an employer from enforcing a | ||||||
| 19 | pre-employment drug testing policy, random drug testing | ||||||
| 20 | policy, or zero-tolerance or drug-free workplace policy or | ||||||
| 21 | from disciplining an employee or withdrawing a job offer from | ||||||
| 22 | an applicant for violating such a policy with respect to an | ||||||
| 23 | employee in a safety sensitive position as defined in | ||||||
| 24 | subsection (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.
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| 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
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| 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 | ||||||
| 25 | non-profit
organization that, as one of its primary purposes | ||||||
| 26 | or objectives,
discourages the use of one or more lawful | ||||||
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| 1 | products by the general public.
This Section does not apply to | ||||||
| 2 | the use of those lawful products which
impairs an employee's | ||||||
| 3 | ability to perform the employee's assigned duties.
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| 4 | (c) It is not a violation of this Section for an employer | ||||||
| 5 | to offer,
impose or have in effect a health, disability or life | ||||||
| 6 | insurance policy that
makes distinctions between employees for | ||||||
| 7 | the type of coverage or the price
of coverage based upon the | ||||||
| 8 | employees' use of lawful products provided that:
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| 9 | (1) differential premium rates charged employees | ||||||
| 10 | reflect a
differential cost to the employer; and
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| 11 | (2) employers provide employees with a statement | ||||||
| 12 | delineating the
differential rates used by insurance | ||||||
| 13 | carriers.
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| 14 | (d) Nothing in this Act limits an employer's ability to | ||||||
| 15 | withdraw a job offer from an applicant or discipline an | ||||||
| 16 | employee for failing a drug test if failing to do so would put | ||||||
| 17 | the employer in violation of federal or State law or cause it | ||||||
| 18 | to lose a federal or State contract or funding. | ||||||
| 19 | (e) Nothing in this Act shall be construed to create a | ||||||
| 20 | defense for a third party who fails a drug test. | ||||||
| 21 | (f) An employer may consider an applicant or employee to | ||||||
| 22 | be 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 | ||||||
| 13 | applicant or discipline an employee because the employer | ||||||
| 14 | considers the applicant or employee to be impaired, it must | ||||||
| 15 | afford the applicant or employee a reasonable opportunity to | ||||||
| 16 | contest the basis of the determination. | ||||||
| 17 | (g) Nothing in this Act shall be construed to create or | ||||||
| 18 | imply 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 | ||||||
| 9 | with any federal restrictions on employment, including, but | ||||||
| 10 | not limited to, the United States Department of Transportation | ||||||
| 11 | regulation 49 CFR 40.151(e). | ||||||
| 12 | (i) Nothing in this Act shall be construed to interfere | ||||||
| 13 | with the application of the Illinois Workers' Compensation | ||||||
| 14 | Act, specifically, but without limitation, Section 11 of the | ||||||
| 15 | Workers' Compensation Act, the Workers' Occupational Diseases | ||||||
| 16 | Act, or the rules of practice before the Illinois Workers' | ||||||
| 17 | Compensation Commission. | ||||||
| 18 | (Source: P.A. 101-27, eff. 6-25-19.)".
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