Jay Shattuck | Executive Director, Employment Law Council | 217-544-6590


The mission of the Employment Law Council is to effectively represent Illinois employers on employment law issues such as workers compensation, unemployment insurance, employment discrimination, workplace mandates and other management/employee issues. We advocate public policy actions that advance the interests and viewpoints of employers, and to assist in creating a political climate conducive to improving Illinois' ability to create and retain jobs.
The Council accomplishes its mission with the involvement of hundreds of employers who participate in our three committees: Workers' Compensation; Employment Law & Litigation; and Unemployment Insurance.  Through the efforts of these committees we develop policies and strategies that are implemented by the Council and Illinois Chamber staff.
Marijuana Law Changes Raise Many Questions for Employers
With the January 1, 2020 effective date for recreational marijuana becoming lawful for adult use, there has been a great deal of speculation about the impact of Section 10-50 of PA 101-27 on Illinois employers. This section provides for workplace protections regarding employer zero tolerance, drug-free workplace and drug testing policies.
The negotiation process during the legislative consideration of legalizing marijuana did not result in perfect protections for employers. However, in several key areas we were able to obtain legislative intent that helps provide guidance for employers when reviewing their workplace policies regarding marijuana and drug testing. We have two WMA files that we are able to share by drop box, one from the Office of the Senate Secretary and the other from the House Clerk's Office. The links are included in the text below.
In the Senate, Sen. Jason Barickman (R-Bloomington) asked the Senate sponsor, Sen. Heather Steans (D-Chicago) about the impact of the Right to Privacy in the Workplace Act on employer drug testing policies. Specifically he asked (found at 25:38 to 26.51 on the Senate debate file): https://www.dropbox.com/s/cb8m8d331g3qcnr/5-29-19%20HB1438.wma?dl=0
"The Right to Privacy in the Workplace Act provides that an employer is restricted from applying its employment policies to "lawful products" away from the workplace. The changes being made to the Act are:
A. adding that cannabis is a lawful product;
B. adding two exceptions to the Act:      
1. on-call employees, which are defined
2. Section 10-50 of the Cannabis Regulation & Tax Act
To clarify the purpose of the second exception...is this addition of the reference to Section 10-50 meant to allow employers who provide a zero tolerance or drugfree workplace policy to implement and enforce their policy without fear of violating the Right to Privacy in the Workplace Act?"
Sen. Steans response: "Yes".
There also have been questions and concerns raised that the medicinal marijuana law (Compassionate Use of Medical Cannabis Program Act) is not referred to as an exemption from the Right to Privacy in the Workplace Act as the recreational law is. It should be noted that changes enacted to the Compassionate Use of Medical Cannabis Program Act ( PA-101-363 ) included new Section 173 which provides "Conflicts of law. To the extent that any provision of this Act conflicts with any Act that allows the recreational use of cannabis, the provisions of that Act shall control."
Sen. Steans also specifically explained in her opening remarks explaining the bill's provisions that "employers can maintain zero tolerance drug policies" (found at 4:22 in the Senate debate file).
In the House, Rep. David Welter (R-Morris) sought clarification of the use of random testing by employers. He asked the House sponsor, Rep. Kelly Cassidy (D-Chicago) (found at 16:30 to 17:00) 
 "Representative Cassidy, for the purpose of legislative intent I'd like to ask you a question. Are actions of discipline or termination of an employee by an employer for failing a drug test, including a random drug test, protected from litigation under this law?" Rep. Cassidy: "Yes."
Rep. Cassidy also noted in her opening remarks that the legislation, "allows employers to adopt reasonable zero tolerance policies concerning consumption of cannabis" (found at 2:30 to 2:38 of the House debate file). In addition, she states, "we have assured that language for employers has been strengthened" (found at 5:27-5:30 in the House debate file).
Later in debate, Rep. Marcus Evans (D-Chicago) asked Rep. Cassidy about the impact on individuals potentially losing their job due to companies doing drug testing. Her response was Found at 58:50 to 1:00 in the House debate file) :
"The same zero tolerance policies that are in place now, exist, will exist, afterwards. This legislation just affirms the existence and the right for employers to have zero tolerance policies. It doesn't change the status quo with regard to the ability to have a zero tolerance policy."
While these intentions are helpful, we continue to work on legislative clarifications to Section 10-50 to including:
1) Clarifying that an employer has the ability to take disciplinary action against applicants for failing a pre-employment drug test and against employees for failing a random drug test; 

2) Clarifying that if the employer has a zero tolerance, drug-free workplace or drug testing policy, proof of impairment is not needed to allow the employer to take disciplinary action;

3) Clarifying that employers may continue to take disciplinary action when an employee who is a medical marijuana cardholder violates an employer's drug-testing policy; and

4) Clarifying that the Act does not interfere with any collective bargaining agreements.
We are seeking inclusion of these issues in a potential "trailer" bill during the upcoming Veto Session. Employers are encouraged to contact their legislators before the start of the Veto session that starts on October 28th to urge them to support the legislative clarifications.

12th Annual WC Conference a Success
The Illinois Chamber's 12th Annual Workers' Compensation Conference held on October 8th provided significant insight to a number of issues impacting Illinois' workers' compensation system.
The conference was kicked off with remarks from new Workers' Compensation Commission Chairman Michael Brennan. He provided an update on the appointment of arbitrators and commissioners. He also advised as to the IT system being upgraded at the Commission using funding from the litigation settlement with the Illinois Chamber.
Attendees heard much about the new Illinois marijuana law changes and their impact on workers' compensation. Shuaib Ahmed from ASA Law Group spoke to the impact of medical and recreational marijuana law changes and the effect on workers' compensation claims handling. Our featured luncheon speaker, Mark Pew of Preferred Medical, gave an outstanding overview from a national basis on the intersection of Rx opioids and medical marijuana.
Key workshops also were provided:
  • Mark Carter and Jynnifer Cotharn, Inman & Fitzgibbons, Ltd., "Best Tools for Defense; Strategic Use of IMEs, Record Reviews, Utilization Reviews, Impairment Ratings"
  • Michael Teti, Digistream Investigations, "Investigations in the Age of Geosocial Data"
  • Surbhi Saraswat Goyal and Charles Maring, Brady Connolly Masuda, P.C., "Defending Work Injuries . . . Before They Happen!"
  • Dr. Brian Clay, MD, Illinois Bone & Joint Institute, "Standardizing a Return to Work Protocol for Back Injuries in the Workplace"
  • John Campbell and Bradley Smith, Keefe Campbell Biery & Associates, "Impact and Implications of SB 1596 (Civil Action may be brought against Employer)"
  • Jeffrey Risch, Smith Amundsen, LLC, "OSHA Obligations and Workers Compensation in Illinois"
The conference concluded with an informative panel discussion on the implementation of SB 904 and discussion of billing and payment problems. In addition to Chairman Brennan, Amy Bilton from the law firm Nyhan Bambrick Kinzie & Lowry and Dr. David Fletcher, founder of SafeWorks Illinois served on the panel.
Many thanks to our conference sponsors:
ASA Law Group
Inman & Fitzgibbons, Ltd
Keefe, Campbell, Biery & Associates


Wage History Limits Goes into Effect
On July 31st, Governor Pritzker signed HB 834 into law as PA 101-177 , effective September 29, 2019. This legislation is similar to legislation vetoed by former Governor Rauner.
With Governor Pritzker's signature of HB 834 into law, all Illinois employers face more regulation and greater risk of lawsuits with much higher financial awards. The Illinois Chamber opposed HB 834 as it diminished employer defenses and dramatically increased the value of litigation. 
The Illinois Chamber urges employers to review their pay systems to assure compliance. Also, any Illinois employer that has an employment application seeking salary information from a job applicant, that application is now out of compliance with this new law. The Illinois Chamber provides resources that can assist employers in complying with this new law and other new regulation recently enacted into law. For a more detailed summary of this new law or a sample job application, contact Jay Shattuck.

Employment Law Legislation Enacted in 2019
Effective date : July 1, 2020
Primary Sponsor : Representative Will Guzzardi (D)/Senator Cristina Castro (D)
Summary : Defines "employer" to include any person employing one (instead of 15) or more employees within Illinois during 20 or more calendar weeks within the calendar year of or preceding the alleged violation. Provides that "employer" does not include any place of worship with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by the place of worship of its activities. 
Effective date: June 25, 2019...sale & possession effective January 1, 2020
Primary Sponsor: Sen. Heather Steans (D)/Rep. Kelly Cassidy (D)
Summary: Legalizes marijuana for adult use. The legislative sponsors negotiated with the Illinois Chamber to provide the strongest workplace protections for employers in the country. The goal to protect employers with zero tolerance, drug free workplace and drug testing policies was met. Employers will be able to continue to provide for safe workplaces through their reasonable, non-discriminatory employment policies.
Effective date: August 1, 2020
Primary Sponsors: Representative Anne Stava-Murray (D)/Senator Tom Cullerton (D)
Summary : Amends the School Visitation Rights Act to clarify that employees may use school visitation privileges for purposes of academic and behavioral meetings in addition to school conferences. Adds that an employee may not be terminated for the use of school visitation privileges.
Effective date : January 1, 2020
Primary Sponsor : Representative Deb Conroy (D)/Senator Julie Morrison (D)
Summary : Amends the Organ Donor Leave Act prohibiting an employer from retaliating against an employee for requesting or obtaining a leave of absence to donate blood, an organ, or bone marrow. Amends the Illinois Anatomical Gift Act requiring the Secretary of State to create a database consisting of all individuals who have consented to having their names included in the First-Person Consent organ and tissue donor registry. Allows an organ procurement organization that has executed a data access agreement with the Secretary of State to have online access to the database to determine whether a potential organ and tissue donor is included in the First-Person Consent organ and tissue donor registry. Requires the organ procurement organization to hold harmless the State, its officials, and employees for certain costs arising out of the organ procurement organization's use of the database.
Effective date: February 19, 2019
Primary Sponsor: Senator Kim Lightford (D)/Representative Will Guzzardi (D)
Summary: Increases the state's minimum wage to $15 an hour by 2025 and $13 for those under 18 by 2025. Teen wage is determined as under the age of 18 and working less than 650 hours per calendar year.
Date of Change
Minimum Wage
Teen Wage
Includes a complex payroll deduction tax credit for employers of 50 or fewer employees. Also increases penalties and fines for violation of the Minimum Wage Act. An employee may recover TREBLE damages of any underpayment along with costs, attorney's fees and damages of 5% per month (previously 2%) of the amount of each underpayment following the date of payment such underpayments remain unpaid. In addition, if the employer's conduct is proven by a preponderance of the evidence to be willful, repeated, or with reckless disregard, the employer is liable to the Department of Labor a penalty of $1,500 payable to its Wage Theft Enforcement Fund. The measure also allows the Department to conduct random audits of employers to determine compliance.
Effective date : May 17, 2019
Primary Sponsor : Senator Elgie R. Sims, Jr. (D)/Representative Jay Hoffman (D)
Summary : Amends the Worker's Compensation Act and the Workers' Occupational Diseases Act. Provides that specified Sections limiting recovery do not apply to injuries or death resulting from an occupational disease as to which the recovery of compensation benefits under the Act would be precluded due to the operation of any period of repose or repose provision. Provides that, as to any such injury occupational disease, the employee, the employee's heirs, and any person having the standing under law to bring a civil action at law has the nonwaivable right to bring such an action against any employer or employers. Effective immediately.
Effective date: January 1, 2020
Primary Sponsor: Senator Omar Aquino (D-Chicago)/Rep. Curtis Tarver (D-Chicago)
Summary: Amends the Illinois Human Rights Act to define "arrest record" as (1) an arrest not leading to a conviction; (2) a juvenile record; or (3) criminal history record information ordered expunged, sealed, or impounded under Section 5.2 of the Criminal Identification Act. It amends Section 2-103 of the Act to provide that it is a civil rights violation for any employer, employment agency or labor organization to inquire into or to use (removes "the fact of") an arrest record as a basis to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment.
Effective date: August 9, 2019
Primary Sponsors: Senator Laura Fine (D-Chicago)/Rep. Bob Morgan (D-Highland Park)
Summary: Expands and makes permanent Illinois' medical cannabis program, adds 11 new conditions for eligibility purposes and expands the range of medical professionals who can certify eligibility of applicants to the program.

Key Legislation
Upcoming Events

December 4, 2019 - Illinois Chamber - ILSHRM Annual Employment Laws Update - more details will be forthcoming.

December 9, 2019 - Workers' Compensation Committee Meeting, 3:30 pm to 5:00 PM, Heyl, Royster, Voelker & Allen, Chicago. 

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