1     
BLOOD ALCOHOL LIMIT AMENDMENTS

2     
2020 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: James A. Dunnigan

5     
Senate Sponsor: Curtis S. Bramble

6     

7     LONG TITLE
8     Committee Note:
9          The Business and Labor Interim Committee recommended this bill.
10               Legislative Vote:     11 voting for     0 voting against     9 absent
11     General Description:
12          This bill amends provisions of the Workers' Compensation Act regarding an employee's
13     blood or breath alcohol concentration.
14     Highlighted Provisions:
15          This bill:
16          ▸     in relation to certain workers' compensation claims, reduces the blood or breath
17     alcohol concentration threshold at which:
18               •     an employer's permitting, encouraging, or having actual knowledge of an
19     employee's intoxication from alcohol may affect compensation provided under
20     the Workers' Compensation Act;
21               •     it is presumed that the major contributing cause of an employee's injury is the
22     employee's intoxication from alcohol; and
23               •     the termination of an employee from reemployment for the employee's use of
24     alcohol may affect the employee's disability compensation for a disability claim.
25     Money Appropriated in this Bill:
26          None
27     Other Special Clauses:

28          None
29     Utah Code Sections Affected:
30     AMENDS:
31          34A-2-302, as last amended by Laws of Utah 2014, Chapter 182
32          34A-2-410.5, as enacted by Laws of Utah 2008, Chapter 349
33     

34     Be it enacted by the Legislature of the state of Utah:
35          Section 1. Section 34A-2-302 is amended to read:
36          34A-2-302. Employee's willful misconduct -- Penalty.
37          (1) For purposes of this section:
38          (a) "Controlled substance" is as defined in Section 58-37-2.
39          (b) "Local government employee" is as defined in Section 34-41-101.
40          (c) "Local governmental entity" is as defined in Section 34-41-101.
41          (d) "State institution of higher education" is as defined in Section 34-41-101.
42          (e) "Valid prescription" is a prescription, as defined in Section 58-37-2, that:
43          (i) is prescribed for a controlled substance for use by the employee for whom it was
44     prescribed; and
45          (ii) has not been altered or forged.
46          (2) An employee may not:
47          (a) remove, displace, damage, destroy, or carry away any safety device or safeguard
48     provided for use in any employment or place of employment;
49          (b) interfere in any way with the use of a safety device or safeguard described in
50     Subsection (2)(a) by any other person;
51          (c) interfere with the use of any method or process adopted for the protection of any
52     employee in the employer's employment or place of employment; or
53          (d) fail or neglect to follow and obey orders and to do every other thing reasonably
54     necessary to protect the life, health, and safety of employees.
55          (3) Except in case of injury resulting in death:
56          (a) compensation provided for by this chapter shall be reduced 15% when injury is
57     caused by the willful failure of the employee:
58          (i) to use safety devices when provided by the employer; or

59          (ii) to obey any order or reasonable rule adopted by the employer for the safety of the
60     employee; and
61          (b) except when the employer permitted, encouraged, or had actual knowledge of the
62     conduct described in Subsection (4):
63          (i) disability compensation may not be awarded under this chapter or Chapter 3, Utah
64     Occupational Disease Act, to an employee when the major contributing cause of the employee's
65     injury is the employee's conduct described in Subsection (4); or
66          (ii) disability compensation to an employee under this chapter or Chapter 3, Utah
67     Occupational Disease Act, shall be reduced by 15% when the employee's conduct is a
68     contributing cause of the employee's injury but not the major contributing cause.
69          (4) The conduct described in Subsection (3)(b) is the employee's:
70          (a) knowing use of a controlled substance that the employee did not obtain under a
71     valid prescription;
72          (b) intentional abuse of a controlled substance that the employee obtained under a valid
73     prescription if the employee uses the controlled substance intentionally:
74          (i) in excess of prescribed therapeutic amounts; or
75          (ii) in an otherwise abusive manner; or
76          (c) intoxication from alcohol with a blood or breath alcohol concentration of [.08] .05
77     grams or greater as shown by a chemical test.
78          (5) (a) For purposes of Subsections (3) and (4), as shown by a chemical test that
79     conforms to scientifically accepted analytical methods and procedures and includes verification
80     or confirmation of any positive test result by gas chromatography, gas chromatography-mass
81     spectroscopy, or other comparably reliable analytical method, before the result of the test may
82     be used as a basis for the presumption, it is presumed that the major contributing cause of the
83     employee's injury is the employee's conduct described in Subsection (4) if at the time of the
84     injury:
85          (i) the employee has in the employee's system:
86          (A) any amount of a controlled substance or its metabolites if the employee did not
87     obtain the controlled substance under a valid prescription; or
88          (B) a controlled substance the employee obtained under a valid prescription or the
89     metabolites of the controlled substance if the amount in the employee's system is consistent

90     with the employee using the controlled substance intentionally:
91          (I) in excess of prescribed therapeutic amounts; or
92          (II) in an otherwise abusive manner; or
93          (ii) the employee has a blood or breath alcohol concentration of [.08] .05 grams or
94     greater.
95          (b) The presumption created under Subsection (5)(a) may be rebutted by a
96     preponderance of the evidence showing that:
97          (i) the chemical test creating the presumption is inaccurate because the employer failed
98     to comply with:
99          (A) Sections 34-38-4 through 34-38-6; or
100          (B) if the employer is a local governmental entity or state institution of higher
101     education, Section 34-41-104 and Subsection 34-41-103(5);
102          (ii) the employee did not engage in the conduct described in Subsection (4);
103          (iii) the test results do not exclude the possibility of passive inhalation of marijuana
104     because the concentration of total urinary cannabinoids is less than 50 nanograms/ml as
105     determined by a test conducted in accordance with:
106          (A) Sections 34-38-4 through 34-38-6; or
107          (B) if the employer is a local governmental entity or state institution of higher
108     education, Section 34-41-104 and Subsection 34-41-103(5);
109          (iv) a competent medical opinion from a physician verifies that the amount of
110     controlled substances, metabolites, or alcohol in the employee's system does not support a
111     finding that the conduct described in Subsection (4) was the major contributing cause of the
112     employee's injury or a contributing cause of the employee's injury; or
113          (v) (A) the conduct described in Subsection (4) was not a contributing cause of the
114     employee's injury; or
115          (B) the employee's mental and physical condition were not impaired at the time of the
116     injury.
117          (c) (i) Except as provided in Subsections (5)(c)(ii) and (iii), if a chemical test that
118     creates the presumption under Subsection (5)(a) is taken at the request of the employer, the
119     employer shall comply with:
120          (A) Title 34, Chapter 38, Drug and Alcohol Testing; or

121          (B) if the employee is a local governmental employee or an employee of a state
122     institution of higher education, Title 34, Chapter 41, Local Governmental Entity Drug-Free
123     Workplace Policies.
124          (ii) Notwithstanding Section 34-38-13, the results of a test taken under Title 34,
125     Chapter 38, Drug and Alcohol Testing, may be disclosed to the extent necessary to establish or
126     rebut the presumption created under Subsection (5)(a).
127          (iii) Notwithstanding Section 34-41-103, the results of a test taken under Title 34,
128     Chapter 41, Local Governmental Entity Drug-Free Workplace Policies, may be disclosed to the
129     extent necessary to establish or rebut the presumption created under Subsection (5)(a).
130          (6) (a) A test sample taken pursuant to this section shall be taken as a split sample.
131          (b) One part of the sample is to be used by the employer for testing pursuant to
132     Subsection (5)(a):
133          (i) at a testing facility selected by the employer; and
134          (ii) at the employer's or the employer's workers' compensation carrier's expense.
135          (c) The testing facility selected under Subsection (6)(b) shall hold the part of the
136     sample not used under Subsection (6)(b) until the sooner of:
137          (i) six months from the date of the original test; or
138          (ii) when the employee requests that the sample be tested.
139          (d) The employee has only six months from the date of the original test to have the
140     remaining sample tested:
141          (i) at the employee's expense; and
142          (ii) at the testing facility selected by the employee, except that the test shall meet the
143     requirements of Subsection (5)(a).
144          (7) If any provision of this section, or the application of any provision of this section to
145     any person or circumstance, is held invalid, the remainder of this section shall be given effect
146     without the invalid provision or application.
147          Section 2. Section 34A-2-410.5 is amended to read:
148          34A-2-410.5. Employee cooperation with reemployment.
149          (1) As used in this section:
150          (a) "Controlled substance" is as defined in Section 58-37-2.
151          (b) "Correctional facility" means:

152          (i) a correctional facility as defined in Section 76-8-311.3; or
153          (ii) a facility operated by or contracting with the federal government to house a
154     criminal offender in either a secure or nonsecure setting.
155          (c) "Disability claim" means a claim for compensation for:
156          (i) a temporary total disability benefit; or
157          (ii) a temporary partial disability benefit.
158          (d) "Local governmental entity" is as defined in Section 34-41-101.
159          (e) "Reemployment" means employment that:
160          (i) is after an accident or occupational disease that is the basis for a disability claim;
161     and
162          (ii) in a manner consistent with Subsection (2)(b), offers to an employee an opportunity
163     for earnings, considering the employee's:
164          (A) education;
165          (B) experience; and
166          (C) physical and mental impairment or condition.
167          (f) "State institution of higher education" means an institution listed in Section
168     53B-3-102.
169          (g) "Valid prescription" is a prescription, as defined in Section 58-37-2, that is:
170          (i) prescribed for a controlled substance for use by the employee for whom it is
171     prescribed; and
172          (ii) not altered or forged.
173          (2) In accordance with this section, the commission may reduce or terminate an
174     employee's disability compensation for a disability claim for good cause shown by the
175     employer including if:
176          (a) the employer terminates the employee from the reemployment and the termination
177     is:
178          (i) reasonable;
179          (ii) for cause; and
180          (iii) as a result, in whole or in part, of:
181          (A) criminal conduct;
182          (B) violent conduct; or

183          (C) a violation of a reasonable, written workplace health, safety, licensure, or
184     nondiscrimination rule that is applied in a manner that is reasonable and nondiscriminatory;
185          (b) the employee is incarcerated in a correctional facility for a period of time that
186     would result in the termination of the employee's reemployment in accordance with a
187     reasonable, written workplace rule that is applied in a manner that is reasonable and
188     nondiscriminatory; or
189          (c) subject to Subsection (6), the employee is terminated from the reemployment:
190          (i) (A) for use of a controlled substance that the employee did not obtain under a valid
191     prescription;
192          (B) for intentional abuse of a controlled substance that the employee obtained under a
193     valid prescription, if the employee uses the controlled substance intentionally:
194          (I) in excess of a prescribed therapeutic amount; or
195          (II) in an otherwise abusive manner; or
196          (C) for the use of alcohol that results in intoxication from alcohol with a blood or
197     breath alcohol concentration of [.08] .05 grams or greater; and
198          (ii) in accordance with a reasonable, written workplace rule that is applied in a manner
199     that is reasonable and nondiscriminatory.
200          (3) Notwithstanding the other provisions of this section, the employee described in
201     Subsection (2) is eligible for medical benefits to the extent otherwise allowed under this title.
202          (4) (a) An employer or the employer's insurance carrier may file an application for a
203     hearing with the Division of Adjudication to request that an employee's disability
204     compensation for a disability claim be reduced or terminated under this section.
205          (b) An action under this Subsection (4) is barred if an application for a hearing is not
206     filed within one year from the day on which the employer terminates the employee from
207     reemployment as described in Subsection (2).
208          (c) An employer or the employer's insurance carrier shall notify the employee that the
209     employer or employer's insurance carrier has filed a request for a hearing under this section
210     within three business days of the day on which the filing is made.
211          (5) (a) The commission may reduce or terminate the disability compensation of an
212     employee for a disability claim if after a hearing requested under Subsection (4), the
213     commission determines that the conditions of Subsection (2) are met.

214          (b) The commission shall issue an order as to whether or not an employee's disability
215     compensation is reduced or terminated under this section by no later than 45 days from the day
216     on which an application for a hearing is filed.
217          (c) A reduction or termination of disability compensation under this Subsection (5)
218     takes effect on the day determined by the commission.
219          (d) If the disability compensation is ordered terminated or reduced, the employer or
220     employer's insurance carrier shall treat a resulting overpayment as an offset against the
221     employer's or employer's insurance carrier's future obligations to pay disability compensation to
222     the employee.
223          (6) (a) For purposes of Subsection (2)(c), the commission may consider a chemical test
224     that conforms to scientifically accepted analytical methods and procedures and includes
225     verification or confirmation of any positive test result by gas chromatography, gas
226     chromatography-mass spectroscopy, or other comparably reliable analytical method showing
227     that the employee has:
228          (i) in the employee's system during employment:
229          (A) any amount of a controlled substance or its metabolites if the employee did not
230     obtain the controlled substance under a valid prescription; or
231          (B) a controlled substance the employee obtained under a valid prescription or the
232     metabolites of the controlled substance if the amount in the employee's system is consistent
233     with the employee using the controlled substance intentionally:
234          (I) in excess of prescribed therapeutic amounts; or
235          (II) in an otherwise abusive manner; or
236          (ii) a blood or breath alcohol concentration of [.08] .05 grams or greater during
237     employment.
238          (b) A local governmental entity or state institution of higher education shall comply
239     with Title 34, Chapter 41, Local Governmental Entity Drug-Free Workplace Policies, in
240     engaging in a test for a controlled substance that is the basis of a presumption under this
241     section.
242          (7) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
243     commission may make rules:
244          (a) describing factors to be considered under Subsection (2); and

245          (b) related to the procedures for a request for a hearing under this section.
246          (8) The adjudication of a dispute arising under this section is governed by Part 8,
247     Adjudication.
248          (9) An issue related to an employee's cooperation with regard to a claim for
249     compensation for permanent total disability benefits is governed by Section 34A-2-413.