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Cannabis Amendment, updates

    May 7, 2019

    The information below was sent out to all Members of the Illinois Chamber/ELC Employment Law & Litigation Committee and we wanted to send this out to all of our members.

    Over the weekend, the Governor’s Office and the lead sponsors of the recreational marijuana legislation held a conference call with stakeholders to review the  amendment. A summary of the provisions is right here.

    One of the more important concerns of the Illinois Chamber was the workplace protections. Those provisions are found in Section 10-50, pages 58-60 and are provided below. These are based on the medicinal marijuana protections and are enhanced with a broad definition of “workplace”.

    This language will be acted upon this week when the General Assembly returns.

    Section 10-50. Employment; employer liability. 
    (a) Nothing in this Act shall prohibit an employer from adopting reasonable employment policies concerning smoking, consumption, storage or use of cannabis in the workplace 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. 
    (c) Nothing in this Act shall limit 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 by cannabis if the employer has a good faith belief that an employee was under the influence of cannabis and the 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 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 discipline an employee on the basis that they are 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 for any person against an employer for: 
    (1) actions, including but not limited to discipline or termination of employment, 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 in violation of the employer's employment policies; 
    (2) 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 on the employer's workplace or while performing the employee's job duties in violation of the employer's workplace drug policy; or
    (3) 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 Pilot 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 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 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.