Rep. Bob Morgan

Filed: 1/27/2022





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2    AMENDMENT NO. ______. Amend House Bill 4116 by replacing
3everything after the enacting clause with the following:
4    "Section 5. The Right to Privacy in the Workplace Act is
5amended by changing Section 5 as follows:
6    (820 ILCS 55/5)  (from Ch. 48, par. 2855)
7    Sec. 5. Discrimination for use of lawful products
9    (a) Except as otherwise specifically provided by law,
10including Section 10-50 of the Cannabis Regulation and Tax
11Act, and except as provided in subsections (b) and (c), (d),
12(e), (f), (g), (h), (i), and (j) of this Section, it shall be
13unlawful for an employer to refuse to hire or to discharge any
14individual, or otherwise disadvantage any individual, with
15respect to compensation, terms, conditions or privileges of
16employment because the individual uses lawful products away



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1from off the premises of the employer's workplace employer
2during nonworking and non-call hours or because the results of
3an individual's drug test indicate the presence of
4tetrahydrocannabinol, unless the employee works in a safety
5sensitive position, unless the employee demonstrates
6impairment as defined in this Act, or unless the test results
7for tetrahydrocannabinol exceeds the limits set forth in
8Section 11-501.2 of the Illinois Vehicle Code.
9    (a-5) As used in this Section: ,
10        (1) "Lawful lawful products" means products that are
11    legal under state law.
12        (2) "Workplace" means the employer's premises,
13    including any building, real property, and parking area
14    under the control of the employer or area used by an
15    employee while in the performance of the employee's job
16    duties.
17        (3) "On-call" means For purposes of this Section, an
18    employee is deemed on-call when the employee is scheduled
19    with at least 24 hours' notice by his or her employer to be
20    on standby or otherwise responsible for performing tasks
21    related to his or her employment either at the employer's
22    workplace premises or other previously designated location
23    by his or her employer or supervisor to perform a
24    work-related task.
25        (4) "Safety sensitive position" means any position
26    designated in writing by the employer as a safety



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1    sensitive position in which the person performing the
2    position, or duties required of the position, while under
3    the influence of tetrahydrocannabinol, may constitute a
4    threat to or endanger the health or safety of the person or
5    others.
6        "Safety sensitive position" includes the following:
7            (1) A position that requires any of the following:
8                (A) carrying a firearm;
9                (B) performing medical procedures,
10            life-threatening procedures, or emergency
11            services; or
12                (C) working with hazardous or flammable
13            materials, controlled substances, or
14            pharmaceuticals.
15            (2) A position in which a lapse of attention could
16        result in injury, illness, death, or damage to
17        property, including, without limitation, a position
18        operating, repairing, maintaining, monitoring, or
19        designing equipment, machinery, critical services and
20        infrastructure, aircraft, motorized watercraft, or
21        motor vehicles as part of the position's job duties.
22    (b) This Section does not apply to any employer that is a
23non-profit organization that, as one of its primary purposes
24or objectives, discourages the use of one or more lawful
25products by the general public. This Section does not apply to
26the use of those lawful products which impairs an employee's



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1ability to perform the employee's assigned duties.
2    (c) It is not a violation of this Section for an employer
3to offer, impose or have in effect a health, disability or life
4insurance policy that makes distinctions between employees for
5the type of coverage or the price of coverage based upon the
6employees' use of lawful products provided that:
7        (1) differential premium rates charged employees
8    reflect a differential cost to the employer; and
9        (2) employers provide employees with a statement
10    delineating the differential rates used by insurance
11    carriers.
12    (d) Nothing in this Act prohibits an employer from
13enforcing a pre-employment drug testing policy, random drug
14testing policy, or a drug-free workplace policy or from
15disciplining an employee or withdrawing a job offer to an
16applicant for violating such policy if the policy is applied
17to employees working in safety sensitive positions. An
18employer, however, may not take adverse action against an
19employee solely because of a positive drug test for
20tetrahydrocannabinol unless the test result exceeds the limits
21set forth in Section 11-501.2 of the Illinois Vehicle Code.
22    (e) Nothing in this Act limits an employer's ability to
23discipline an employee for failing a drug test if failing to do
24so would put the employer in violation of federal law or cause
25it to lose a federal contract or funding.
26    (f) Nothing in this Act shall be construed to create a



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



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1        (2) actions based on the employer's good faith belief
2    that an employee was impaired while working, while working
3    at the employer's workplace during the hours of
4    employment;
5        (3) discipline or termination of the employment of an
6    employee or withdrawal of a job offer from an applicant
7    when enforcing a drug policy that complies with this
8    Section; or
9        (4) injury or loss to a third party if the employer
10    neither knew nor had reason to know that the employee was
11    impaired.
12    (i) Nothing in this Act shall be construed to interfere
13with any federal restrictions on employment, including, but
14not limited to, the United States Department of Transportation
15regulation 49 CFR 40.151(e).
16(Source: P.A. 101-27, eff. 6-25-19.)".