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 
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 
8prohibited. 

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.)".