Full Text of HB4116 102nd General Assembly
HB4116ham001 102ND GENERAL ASSEMBLY | Rep. Bob Morgan Filed: 1/27/2022
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| 1 | | AMENDMENT TO HOUSE BILL 4116
| 2 | | AMENDMENT NO. ______. Amend House Bill 4116 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Right to Privacy in the Workplace Act is | 5 | | amended 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 | 8 | | prohibited.
| 9 | | (a) Except as otherwise specifically provided by law, | 10 | | including Section 10-50 of the Cannabis Regulation and Tax | 11 | | Act, and except as
provided in subsections (b) and (c) , (d), | 12 | | (e), (f), (g), (h), (i), and (j) of this Section, it shall be | 13 | | unlawful
for an employer to refuse to hire or to discharge any | 14 | | individual, or
otherwise disadvantage any individual, with | 15 | | respect to compensation, terms,
conditions or privileges of | 16 | | employment because the individual uses lawful
products away |
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| 1 | | from off the premises of the employer's workplace employer | 2 | | during nonworking and non-call hours or because the results of | 3 | | an individual's drug test indicate the presence of | 4 | | tetrahydrocannabinol, unless the employee works in a safety | 5 | | sensitive position, unless the employee demonstrates | 6 | | impairment as defined in this Act, or unless the test results | 7 | | for tetrahydrocannabinol exceeds the limits set forth in | 8 | | Section 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 | 23 | | non-profit
organization that, as one of its primary purposes | 24 | | or objectives,
discourages the use of one or more lawful | 25 | | products by the general public.
This Section does not apply to | 26 | | the use of those lawful products which
impairs an employee's |
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| 1 | | ability to perform the employee's assigned duties.
| 2 | | (c) It is not a violation of this Section for an employer | 3 | | to offer,
impose or have in effect a health, disability or life | 4 | | insurance policy that
makes distinctions between employees for | 5 | | the type of coverage or the price
of coverage based upon the | 6 | | employees' 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 | 13 | | enforcing a pre-employment drug testing policy, random drug | 14 | | testing policy, or a drug-free workplace policy or from | 15 | | disciplining an employee or withdrawing a job offer to an | 16 | | applicant for violating such policy if the policy is applied | 17 | | to employees working in safety sensitive positions. An | 18 | | employer, however, may not take adverse action against an | 19 | | employee solely because of a positive drug test for | 20 | | tetrahydrocannabinol unless the test result exceeds the limits | 21 | | set forth in Section 11-501.2 of the Illinois Vehicle Code. | 22 | | (e) Nothing in this Act limits an employer's ability to | 23 | | discipline an employee for failing a drug test if failing to do | 24 | | so would put the employer in violation of federal law or cause | 25 | | it to lose a federal contract or funding. | 26 | | (f) Nothing in this Act shall be construed to create a |
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| 1 | | defense for a third party who fails a drug test. | 2 | | (g) An employer may consider an applicant or employee to | 3 | | be impaired when he or she tests positive for | 4 | | tetrahydrocannabinol that exceeds the limits set forth in | 5 | | Section 11-501.2 of the Illinois Vehicle Code or manifests | 6 | | specific, articulable symptoms or behavior while working that | 7 | | decrease or lessen his or her performance of the duties or | 8 | | tasks of the employee's job position, including manifestations | 9 | | of the employee's speech, physical dexterity, agility, | 10 | | coordination, demeanor, irrational or unusual behavior, | 11 | | negligence or carelessness in operating equipment or | 12 | | machinery, disregard for the safety of the employee or others, | 13 | | involvement in an accident that results in serious damage to | 14 | | equipment or property, disruption of a production or | 15 | | manufacturing process, or carelessness that results in any | 16 | | injury to the employee or others. If an employer elects to | 17 | | withdraw a job offer from an applicant or discipline an | 18 | | employee under this subsection, it must afford the applicant | 19 | | or employee a reasonable opportunity to contest the basis of | 20 | | the determination. | 21 | | (h) Nothing in this Act shall be construed to create or | 22 | | imply 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 | 13 | | with any federal restrictions on employment, including, but | 14 | | not limited to, the United States Department of Transportation | 15 | | regulation 49 CFR 40.151(e). | 16 | | (Source: P.A. 101-27, eff. 6-25-19.)".
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