Bill Text: IL SB2321 | 2023-2024 | 103rd General Assembly | Introduced

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Bill Title: Amends the Right to Privacy in the Workplace Act. Provides that an employer may not refuse to hire an individual or discipline an employee because results of an individual's drug test indicate the presence of THC on the part of that individual. Permits an employer to enforce a pre-employment drug testing policy, zero-tolerance drug testing policy, random drug testing policy, or a drug-free workplace policy or disciplining an employee for violating such policy, but provides that an employer may not take adverse action against an employee solely because of a positive drug test for cannabis unless the test result exceeds limits set forth in certain DUI provisions of the Illinois Vehicle Code. Sets forth conditions under which an employer may discipline an employee for impairment. Provides that there is not a cause of action for any person against an employer for disciplining or terminating the employment of an individual when enforcing a compliant policy. Amends the Cannabis Regulation and Tax Act. Repeals provisions concerning employment and employer liability.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2024-05-03 - Rule 2-10 Committee/3rd Reading Deadline Established As May 17, 2024 [SB2321 Detail]

Download: Illinois-2023-SB2321-Introduced.html

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103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 SB2321 Introduced 2/10/2023, by Sen. Robert Peters SYNOPSIS AS INTRODUCED:
410 ILCS 705/10-50
820 ILCS 55/5 from Ch. 48, par. 2855
Amends the Right to Privacy in the Workplace Act. Provides that an employer may not refuse to hire an individual or discipline an employee because results of an individual's drug test indicate the presence of THC on the part of that individual. Permits an employer to enforce a pre-employment drug testing policy, zero-tolerance drug testing policy, random drug testing policy, or a drug-free workplace policy or disciplining an employee for violating such policy, but provides than an employer may not take adverse action against an employee solely because of a positive drug test for cannabis unless the test result exceeds limits set forth in certain DUI provisions of the Illinois Vehicle Code. Sets forth conditions under which an employer may discipline an employee for impairment. Provides that there is not a cause of action for any person against an employer for disciplining or terminating the employment of an individual when enforcing a compliant policy. Amends the Cannabis Regulation and Tax Act. Repeals provisions concerning employment and employer liability.
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A BILL FOR
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AN ACT concerning employment.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Cannabis Regulation and Tax Act is amended
by changing Section 10-50 as follows:
(410 ILCS 705/10-50)
Sec. 10-50. Employment; employer liability.
(a) Nothing in this Act shall prohibit an employer from
adopting reasonable zero tolerance or drug free workplace
policies, or employment policies concerning drug testing,
smoking, consumption, storage, or use of cannabis in the
workplace or while on call provided that the policy is applied
in a nondiscriminatory manner.
(b) Nothing in this Act shall require an employer to
permit an employee to be under the influence of or use cannabis
in the employer's workplace or while performing the employee's
job duties or while on call.
(c) Nothing in this Act shall limit or prevent an employer
from disciplining an employee or terminating employment of an
employee for violating an employer's employment policies or
workplace drug policy.
(d) An employer may consider an employee to be impaired or
under the influence of cannabis if the employer has a good

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faith belief that an employee manifests specific, articulable
symptoms while working that decrease or lessen the employee's
performance of the duties or tasks of the employee's job
position, including symptoms of the employee's speech,
physical dexterity, agility, coordination, demeanor,
irrational or unusual behavior, or negligence or carelessness
in operating equipment or machinery; disregard for the safety
of the employee or others, or involvement in any accident that
results in serious damage to equipment or property; disruption
of a production or manufacturing process; or carelessness that
results in any injury to the employee or others. If an employer
elects to discipline an employee on the basis that the
employee is under the influence or impaired by cannabis, the
employer must afford the employee a reasonable opportunity to
contest the basis of the determination.
(e) Nothing in this Act shall be construed to create or
imply a cause of action under this Act for any person against
an employer for:
(1) actions taken pursuant to an employer's reasonable
workplace drug policy that complies with the Right to
Privacy in the Workplace Act , including but not limited
to subjecting an employee or applicant to reasonable drug
and alcohol testing, reasonable and nondiscriminatory
random drug testing, and discipline, termination of
employment, or withdrawal of a job offer due to a failure
of a drug test;

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(2) actions based on the employer's good faith belief
that an employee used or possessed cannabis in the
employer's workplace or while performing the employee's
job duties or while on call in violation of the employer's
employment policies;
(3) actions, including discipline or termination of
employment, based on the employer's good faith belief that
an employee was impaired as a result of the use of
cannabis, or under the influence of cannabis, while at the
employer's workplace or while performing the employee's
job duties or while on call in violation of the employer's
workplace drug policy; or
(4) injury, loss, or liability to a third party if the
employer neither knew nor had reason to know that the
employee was impaired.
(f) Nothing in this Act shall be construed to enhance or
diminish protections afforded by any other law, including but
not limited to the Compassionate Use of Medical Cannabis
Program Act or the Opioid Alternative Pilot Program.
(g) Nothing in this Act shall be construed to interfere
with any federal, State, or local restrictions on employment
including, but not limited to, the United States Department of
Transportation regulation 49 CFR 40.151(e) or impact an
employer's ability to comply with federal or State law or
cause it to lose a federal or State contract or funding.
(h) As used in this Section, "workplace" means the

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employer's premises, including any building, real property,
and parking area under the control of the employer or area used
by an employee while in the performance of the employee's job
duties, and vehicles, whether leased, rented, or owned.
"Workplace" may be further defined by the employer's written
employment policy, provided that the policy is consistent with
this Section.
(i) For purposes of this Section, an employee is deemed
"on call" when such employee is scheduled with at least 24
hours' notice by his or her employer to be on standby or
otherwise responsible for performing tasks related to his or
her employment either at the employer's premises or other
previously designated location by his or her employer or
supervisor to perform a work-related task.
(Source: P.A. 101-27, eff. 6-25-19; 101-593, eff. 12-4-19.)
Section 10. The Right to Privacy in the Workplace Act is
amended by changing Section 5 as follows:
(820 ILCS 55/5) (from Ch. 48, par. 2855)
Sec. 5. Discrimination for use of lawful products
prohibited.
(a) Except as otherwise specifically provided by law,
including Section 10-50 of the Cannabis Regulation and Tax
Act, and except as provided in subsections (a-5), (b), and
(c), (d), (e), (f), (g), (h), and (i) of this Section, it shall

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be unlawful for an employer to refuse to hire or to discharge
any individual, or otherwise disadvantage any individual, with
respect to compensation, terms, conditions or privileges of
employment because:
(1) the individual uses lawful products off the
premises of the employer's workplace employer during
nonworking hours and hours the individual is not on-call
non-call hours ; or .
(2) the results of an individual's drug test indicate
the presence of tetrahydrocannabinol, unless:
(A) the employee works in a safety sensitive
position;
(B) the applicant or employee demonstrates
impairment as provided in subsection (f); or
(C) the test results for tetrahydrocannabinol
meets or exceeds the legal limits set forth in Section
11-501.2 of the Illinois Vehicle Code.
Except as provided in paragraphs (1) and (2), nothing in
this Act prohibits an employer from (i) enforcing a
pre-employment drug testing policy, random drug testing
policy, or zero-tolerance or drug-free workplace policy or
from disciplining an employee or withdrawing a job offer from
an applicant for violating such a policy; (ii) disciplining or
discharging an employee whose use of a lawful product
adversely affects or impairs the employee's job performance,
conduct, or ability to safely perform the assigned job duties

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in the employer's workplace during working hours or hours the
individual is on call; or (iii) implementing and enforcing
workplace policies regarding the possession, use, or
impairment of lawful products in the employer's workplace
during working hours or hours the individual is on call.
(a-5) As used in this Section: ,
(1) "Lawful lawful products" means products that are
legal for the employee to use under state law.
(2) "Workplace" means the employer's premises,
including any building, real property, and parking area
under the control of the employer or area used by an
employee while in the performance of the employee's job
duties.
(3) "On-call" means For purposes of this Section, an
employee is deemed on-call when the employee is scheduled
with at least 24 hours' notice by his or her employer to be
on standby or otherwise responsible for performing tasks
related to his or her employment either at the employer's
workplace premises or other previously designated location
by his or her employer or supervisor to perform a
work-related task.
(4) "Safety sensitive position" means a position that
meets all of the following requirements:
(A) is designated as a safety sensitive position
in writing by the employer;
(B) requires tasks and duties that could

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reasonably result in injury, illness, death, or damage
to property if the person performing them is under the
influence of tetrahydrocannabinol; and
(C) requires one or more of the following
responsibilities:
(i) carrying a firearm or working for a law
enforcement agency in a capacity that impacts the
safety of others;
(ii) performing medical procedures or
emergency services;
(iii) working with hazardous or flammable
materials, controlled substances, or
pharmaceuticals;
(iv) working around heavy machinery in a
retail distribution center or manufacturing
facility; or
(v) operating, repairing, maintaining,
monitoring, or designing one or more of the
following: (I) heavy machinery; (II) aircraft;
(III) motorized watercrafts; (IV) motor vehicles;
or (V) critical services and infrastructure. As
used in this subparagraph, "critical services and
infrastructure" means physical and cyber systems
and assets that are so vital to the public that
their incapacity, compromise, or destruction would
have a debilitating impact on physical or economic

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security, public health, or safety.
(5) "Retail distribution center" means a distribution
center where products are received and temporarily stored
and where orders for products are packaged or repackaged
for distribution to resellers, wholesalers, or consumers.
"Retail distribution center" does not mean a warehouse
used only for purposes of storing products.
(b) This Section does not apply to any employer that is a
non-profit organization that, as one of its primary purposes
or objectives, discourages the use of one or more lawful
products by the general public. This Section does not apply to
the use of those lawful products which impairs an employee's
ability to perform the employee's assigned duties.
(c) It is not a violation of this Section for an employer
to offer, impose or have in effect a health, disability or life
insurance policy that makes distinctions between employees for
the type of coverage or the price of coverage based upon the
employees' use of lawful products provided that:
(1) differential premium rates charged employees
reflect a differential cost to the employer; and
(2) employers provide employees with a statement
delineating the differential rates used by insurance
carriers.
(d) Nothing in this Act limits an employer's ability to
withdraw a job offer from an applicant or discipline an
employee for failing a drug test if failing to do so would put

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the employer in violation of federal or State law or cause it
to lose a federal or State contract or funding.
(e) Nothing in this Act shall be construed to create a
defense for a third party who fails a drug test.
(f) An employer may consider an applicant or employee to
be impaired when:
(1) he or she tests positive for tetrahydrocannabinol
at a level that meets or exceeds the legal limits set forth
in Section 11-501.2 of the Illinois Vehicle Code; or
(2) manifests specific, articulable symptoms or
behavior while working that decrease or lessen his or her
performance of the duties or tasks of the employee's job
position, including manifestations of the employee's
speech, physical dexterity, agility, coordination,
demeanor, irrational or unusual behavior, negligence or
carelessness in operating equipment or machinery,
disregard for the safety of the employee or others,
involvement in an accident that results in serious damage
to equipment or property, disruption of a production or
manufacturing process, or carelessness that results in any
injury to the employee or others.
If an employer elects to withdraw a job offer from an
applicant or discipline an employee because the employer
considers the applicant or employee to be impaired, it must
afford the applicant or employee a reasonable opportunity to
contest the basis of the determination.

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(g) Nothing in this Act shall be construed to create or
imply a cause of action for any person against an employer for:
(1) actions based on the employer's good faith belief
that an employee used or possessed tetrahydrocannabinol
while at the employer's workplace or during the hours of
employment;
(2) actions based on the employer's good faith belief
that an employee was impaired while working, while working
at the employer's workplace during the hours of
employment;
(3) discipline or termination of the employment of an
employee or withdrawal of a job offer from an applicant
when enforcing a drug policy that complies with this
Section; or
(4) injury or loss to a third party if the employer
neither knew nor had reason to know that the employee was
impaired.
(h) Nothing in this Act shall be construed to interfere
with any federal restrictions on employment, including, but
not limited to, the United States Department of Transportation
regulation 49 CFR 40.151(e).
(i) Nothing in this Act shall be construed to interfere
with the application of the Illinois Workers' Compensation
Act, specifically, but without limitation, Section 11 of the
Workers' Compensation Act, the Workers' Occupational Diseases
Act, or the rules of practice before the Illinois Workers'

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Compensation Commission.
(Source: P.A. 101-27, eff. 6-25-19.)