Rep. Bob Morgan
Filed: 2/14/2022
 
 


 




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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.)".