H.B. 23 Enrolled

1

WORKPLACE DRUG AND ALCOHOL TESTING
2 2010 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Trisha S. Beck
5 Senate Sponsor: Karen Mayne
6
7 LONG TITLE
8 General Description:
9 This bill modifies provisions related to an employer testing for drugs and alcohol.
10 Highlighted Provisions:
11 This bill:
12 . modifies terminology;
13 . clarifies effect of complying with the chapter;
14 . requires certain confirmation testing to be done by a certified laboratory;
15 . addresses grounds for employer action;
16 . addresses presumptions in applying employer protections from liability; and
17 . makes technical and conforming amendments.
18 Monies Appropriated in this Bill:
19 None
20 Other Special Clauses:
21 None
22 Utah Code Sections Affected:
23 AMENDS:
24 34-38-1, as enacted by Laws of Utah 1987, Chapter 234
25 34-38-2, as enacted by Laws of Utah 1987, Chapter 234
26 34-38-3, as last amended by Laws of Utah 2001, Chapter 107
27 34-38-6, as enacted by Laws of Utah 1987, Chapter 234
28 34-38-8, as enacted by Laws of Utah 1987, Chapter 234
29 34-38-10, as enacted by Laws of Utah 1987, Chapter 234

30 34-38-11, as enacted by Laws of Utah 1987, Chapter 234
31 34-38-14, as last amended by Laws of Utah 2001, Chapter 73
32
33 Be it enacted by the Legislature of the state of Utah:
34 Section 1. Section 34-38-1 is amended to read:
35 34-38-1. Legislative findings -- Purpose and intent of chapter.
36 (1) The Legislature finds that a healthy and productive work force, safe working
37 conditions free from the effects of drugs and alcohol, and maintenance of the quality of
38 products produced and services rendered in this state, are important to employers, employees,
39 and the general public. The Legislature further finds that the abuse of drugs and alcohol
40 creates a variety of workplace problems, including increased injuries on the job, increased
41 absenteeism, increased financial burden on health and benefit programs, increased workplace
42 theft, decreased employee morale, decreased productivity, and a decline in the quality of
43 products and services.
44 [Therefore, in balancing the interests of employers, employees, and the welfare of the
45 general public, the Legislature finds that fair and equitable testing for drugs and alcohol in the
46 workplace, in accordance with this chapter, is in the best interest of all parties.]
47 (2) The Legislature does not intend to prohibit [any] an employee from seeking
48 damages or job reinstatement, if action [was] is taken by [his] the employer [based on a false
49 drug or alcohol] on the basis of an inaccurate test result.
50 Section 2. Section 34-38-2 is amended to read:
51 34-38-2. Definitions.
52 For purposes of this chapter:
53 (1) "Alcohol" means ethyl alcohol or ethanol.
54 (2) "Drugs" means [any] a substance recognized as a drug in the United States
55 Pharmacopoeia, the National Formulary, the Homeopathic Pharmacopoeia, or other drug
56 compendia, or supplement to any of those compendia.
57 (3) (a) "Employer" means [any] a person[, firm, or corporation], including [any] a

58 public utility or transit district, [which] that has one or more workers or operators employed in
59 the same business, or in or about the same establishment, under any contract of hire, express
60 or implied, oral or written.
61 (b) "Employer" does not include the federal or state government, or other local
62 political subdivisions.
63 (4) "Employee" means [any person] an individual in the service of an employer[, as
64 defined by Subsection (3),] for compensation.
65 (5) "Failed test" means a confirmed drug or alcohol test that indicates that the sample
66 tested is:
67 (a) positive;
68 (b) adulterated; or
69 (c) substituted.
70 (6) "Inaccurate test result" means a test result that is treated as a positive test result,
71 when the sample should not have resulted in a positive test result.
72 (7) "Licensed physician" means an individual who is licensed:
73 (a) as a doctor of medicine under Title 58, Chapter 67, Utah Medical Practice Act, or
74 similar law of another state; or
75 (b) as an osteopathic physician or surgeon under Title 58, Chapter 68, Utah
76 Osteopathic Medical Practice Act, or similar law of another state.
77 [(5)] (8) "Prospective employee" means [any person who has made application] an
78 individual who applies to an employer, [whether written or oral] either in writing or orally, to
79 become [his] the employer's employee.
80 [(6)] (9) "Sample" means urine, blood, breath, saliva, or hair.
81 Section 3. Section 34-38-3 is amended to read:
82 34-38-3. Testing for drugs or alcohol.
83 (1) [It is not unlawful for an] If an employer [to test employees or prospective
84 employees] tests an employee or prospective employee for the presence of drugs or alcohol[, in
85 accordance with the provisions of this chapter,] as a condition of hiring or continued

86 employment, the employer is protected from liability as provided in this chapter if the
87 employer complies with this chapter. However, employers and management in general shall
88 submit to the testing themselves on a periodic basis.
89 (2) (a) [Any] An organization [which is operating] that operates a storage facility or
90 transfer facility or [which] that is engaged in the transportation of high-level nuclear waste or
91 greater than class C radioactive waste within the exterior boundaries of the state shall establish
92 a mandatory drug testing program regarding drugs and alcohol for prospective and existing
93 employees as a condition of hiring any employee or the continued employment of any
94 employee. As a part of the program, employers and management in general shall submit to the
95 testing themselves on a periodic basis. The program shall implement testing standards and
96 procedures established under Subsection (2)(b).
97 (b) The executive director of the Department of Environmental Quality, in
98 consultation with the Labor Commission under Section 34A-1-103 , shall by rule establish
99 standards for timing of testing and dosage for impairment for the drug and alcohol testing
100 program under this Subsection (2). The standards shall address the protection of the safety,
101 health, and welfare of the public.
102 Section 4. Section 34-38-6 is amended to read:
103 34-38-6. Requirements for collection and testing.
104 [All sample] (1) The collection and testing of a sample for drugs and alcohol under
105 this chapter shall be performed in accordance with [the following conditions:] this chapter.
106 [(1) the] (2) The collection of [samples] a sample shall be performed under reasonable
107 and sanitary conditions[;].
108 [(2) samples] (3) A sample shall be collected and tested:
109 (a) with due regard to the privacy of the individual being tested[,]; and
110 (b) in a manner reasonably calculated to prevent substitutions or interference with the
111 collection or testing of a reliable [samples;] sample.
112 [(3) sample] (4) The sample collection shall be documented[, and the]. The
113 documentation procedures [shall] required by this Subsection (4) include:

114 (a) labeling of [samples] a sample so as reasonably to preclude the probability of
115 erroneous identification of test results; and
116 (b) an opportunity for the employee or prospective employee to provide notification of
117 any information [which he] that the employee or prospective employee considers relevant to
118 the test, including:
119 (i) identification of currently or recently used prescription or nonprescription drugs[,];
120 or
121 (ii) other relevant medical information.
122 [(4) sample] (5) Sample collection, storage, and transportation to the place of testing
123 shall be performed so as reasonably to preclude the probability of sample contamination or
124 adulteration[; and].
125 [(5) sample testing] (6) (a) Testing of a sample shall conform to scientifically
126 accepted analytical methods and procedures. [Testing]
127 (b) Before a test of a sample may be considered a failed test and used as a basis for an
128 action by an employer under Section 34-38-8 , testing of the sample shall include [verification
129 or] a confirmation [of any positive test result] test:
130 (i) by gas chromatography, gas chromatography-mass spectroscopy, or other
131 comparably reliable analytical method[, before the result of any test may be used as a basis for
132 any action by an employer under Section 34-38-8 .]; and
133 (ii) if the sample used for a test is a urine sample, by a laboratory that is certified by
134 the United States Department of Health and Human Services under the National Laboratory
135 Certification Program.
136 Section 5. Section 34-38-8 is amended to read:
137 34-38-8. Employer's disciplinary or rehabilitative actions.
138 [Upon receipt of a verified or confirmed positive drug or alcohol test result which]
139 (1) An employer may take an action described in Subsection (2) if:
140 (a) the employer receives a test result that:
141 (i) indicates a failed test;

142 (ii) is confirmed as required by Subsection 34-38-6 (6); and
143 (iii) indicates a violation of the employer's written policy[,]; or [upon the refusal of]
144 (b) an employee or prospective employee refuses to provide a sample[, an].
145 (2) An employer may use [that] a test result or a refusal described in Subsection (1) as
146 the basis for disciplinary or rehabilitative actions, which may include the following:
147 [(1)] (a) a requirement that the employee enroll in an employer-approved
148 rehabilitation, treatment, or counseling program, which may include additional drug or alcohol
149 testing, as a condition of continued employment;
150 [(2)] (b) suspension of the employee with or without pay for a period of time;
151 [(3)] (c) termination of employment;
152 [(4)] (d) refusal to hire a prospective employee; or
153 [(5)] (e) other disciplinary measures in conformance with the employer's usual
154 procedures, including [any] a collective bargaining agreement.
155 Section 6. Section 34-38-10 is amended to read:
156 34-38-10. A cause of action does not arise against employer unless inaccurate
157 test result -- Presumption and limitation of damages in claim against employer.
158 (1) [No] A cause of action [arises] may not arise in favor of [any] a person against an
159 employer who [has established] establishes a program of drug or alcohol testing in accordance
160 with this chapter, and who [has taken any] takes an action under Section 34-38-8 , unless the
161 [employer's action was based on a false test result] employer takes the action on the basis of an
162 inaccurate test result.
163 (2) [In any claim] If a person bringing a claim, including a claim under Section
164 34-38-11 , [where it is alleged] alleges that an employer's action [was] is based on [a false] an
165 inaccurate test result:
166 (a) there is a rebuttable presumption that the test result [was] is valid if the employer
167 [complied with the provisions of] complies with Section 34-38-6 ; and
168 (b) the employer is not liable for monetary damages if [his] the employer's reliance on
169 [a false] an inaccurate test result [was] is reasonable and in good faith.

170 (3) (a) There is a rebuttable presumption that the employer complies with Section
171 34-38-6 if as part of the employer's drug and alcohol testing program a licensed physician who
172 is trained in the interpretation of drug and alcohol test results:
173 (i) provides medical assessment of a result that indicates a failed test;
174 (ii) requests re-analysis of a test result if necessary; and
175 (iii) makes a determination whether or not alcohol or other drug use has occurred.
176 (b) A court may find that an employer complies with Section 34-38-6 notwithstanding
177 that the employer's drug and alcohol testing program does not include an action described in
178 Subsection (3)(a).
179 Section 7. Section 34-38-11 is amended to read:
180 34-38-11. Bases for cause of action for defamation, libel, slander, or damage to
181 reputation.
182 No cause of action for defamation of character, libel, slander, or damage to reputation
183 arises in favor of any person against an employer who has established a program of drug or
184 alcohol testing in accordance with this chapter, unless:
185 (1) the results of that test were disclosed to any person other than the employer, an
186 authorized employee or agent of the employer, the tested employee, or the tested prospective
187 employee;
188 (2) the information disclosed [was] is based on [a false] an inaccurate test result;
189 (3) [the false] an inaccurate test result [was] is disclosed with malice; and
190 (4) all elements of an action for defamation of character, libel, slander, or damage to
191 reputation as established by statute or common law, are satisfied.
192 Section 8. Section 34-38-14 is amended to read:
193 34-38-14. Employee not "disabled."
194 An employee or prospective employee whose drug or alcohol test [results are verified
195 or] result is confirmed as positive in accordance with [the provisions of] this chapter may not,
196 because of those results alone, be defined as a person with a "disability" for purposes of Title
197 34A, Chapter 5, Utah Antidiscrimination Act.

198