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     General Description:
9          This bill amends provisions of the Workers' Compensation Act regarding an employee's
10     blood or breath alcohol concentration.
11     Highlighted Provisions:
12          This bill:
13          ▸     in relation to certain workers' compensation claims, reduces the blood or breath
14     alcohol concentration threshold at which:
15               •     an employer's permitting, encouraging, or having actual knowledge of an
16     employee's intoxication from alcohol may affect compensation provided under
17     the Workers' Compensation Act;
18               •     it is presumed that the major contributing cause of an employee's injury is the
19     employee's intoxication from alcohol; and
20               •     the termination of an employee from reemployment for the employee's use of
21     alcohol may affect the employee's disability compensation for a disability claim.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          None
26     Utah Code Sections Affected:
27     AMENDS:
28          34A-2-302, as last amended by Laws of Utah 2014, Chapter 182
29          34A-2-410.5, as enacted by Laws of Utah 2008, Chapter 349

30     

31     Be it enacted by the Legislature of the state of Utah:
32          Section 1. Section 34A-2-302 is amended to read:
33          34A-2-302. Employee's willful misconduct -- Penalty.
34          (1) For purposes of this section:
35          (a) "Controlled substance" is as defined in Section 58-37-2.
36          (b) "Local government employee" is as defined in Section 34-41-101.
37          (c) "Local governmental entity" is as defined in Section 34-41-101.
38          (d) "State institution of higher education" is as defined in Section 34-41-101.
39          (e) "Valid prescription" is a prescription, as defined in Section 58-37-2, that:
40          (i) is prescribed for a controlled substance for use by the employee for whom it was
41     prescribed; and
42          (ii) has not been altered or forged.
43          (2) An employee may not:
44          (a) remove, displace, damage, destroy, or carry away any safety device or safeguard
45     provided for use in any employment or place of employment;
46          (b) interfere in any way with the use of a safety device or safeguard described in
47     Subsection (2)(a) by any other person;
48          (c) interfere with the use of any method or process adopted for the protection of any
49     employee in the employer's employment or place of employment; or
50          (d) fail or neglect to follow and obey orders and to do every other thing reasonably
51     necessary to protect the life, health, and safety of employees.
52          (3) Except in case of injury resulting in death:
53          (a) compensation provided for by this chapter shall be reduced 15% when injury is
54     caused by the willful failure of the employee:
55          (i) to use safety devices when provided by the employer; or
56          (ii) to obey any order or reasonable rule adopted by the employer for the safety of the
57     employee; and

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

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

114          (c) (i) Except as provided in Subsections (5)(c)(ii) and (iii), if a chemical test that
115     creates the presumption under Subsection (5)(a) is taken at the request of the employer, the
116     employer shall comply with:
117          (A) Title 34, Chapter 38, Drug and Alcohol Testing; or
118          (B) if the employee is a local governmental employee or an employee of a state
119     institution of higher education, Title 34, Chapter 41, Local Governmental Entity Drug-Free
120     Workplace Policies.
121          (ii) Notwithstanding Section 34-38-13, the results of a test taken under Title 34,
122     Chapter 38, Drug and Alcohol Testing, may be disclosed to the extent necessary to establish or
123     rebut the presumption created under Subsection (5)(a).
124          (iii) Notwithstanding Section 34-41-103, the results of a test taken under Title 34,
125     Chapter 41, Local Governmental Entity Drug-Free Workplace Policies, may be disclosed to the
126     extent necessary to establish or rebut the presumption created under Subsection (5)(a).
127          (6) (a) A test sample taken pursuant to this section shall be taken as a split sample.
128          (b) One part of the sample is to be used by the employer for testing pursuant to
129     Subsection (5)(a):
130          (i) at a testing facility selected by the employer; and
131          (ii) at the employer's or the employer's workers' compensation carrier's expense.
132          (c) The testing facility selected under Subsection (6)(b) shall hold the part of the
133     sample not used under Subsection (6)(b) until the sooner of:
134          (i) six months from the date of the original test; or
135          (ii) when the employee requests that the sample be tested.
136          (d) The employee has only six months from the date of the original test to have the
137     remaining sample tested:
138          (i) at the employee's expense; and
139          (ii) at the testing facility selected by the employee, except that the test shall meet the
140     requirements of Subsection (5)(a).
141          (7) If any provision of this section, or the application of any provision of this section to

142     any person or circumstance, is held invalid, the remainder of this section shall be given effect
143     without the invalid provision or application.
144          Section 2. Section 34A-2-410.5 is amended to read:
145          34A-2-410.5. Employee cooperation with reemployment.
146          (1) As used in this section:
147          (a) "Controlled substance" is as defined in Section 58-37-2.
148          (b) "Correctional facility" means:
149          (i) a correctional facility as defined in Section 76-8-311.3; or
150          (ii) a facility operated by or contracting with the federal government to house a
151     criminal offender in either a secure or nonsecure setting.
152          (c) "Disability claim" means a claim for compensation for:
153          (i) a temporary total disability benefit; or
154          (ii) a temporary partial disability benefit.
155          (d) "Local governmental entity" is as defined in Section 34-41-101.
156          (e) "Reemployment" means employment that:
157          (i) is after an accident or occupational disease that is the basis for a disability claim;
158     and
159          (ii) in a manner consistent with Subsection (2)(b), offers to an employee an opportunity
160     for earnings, considering the employee's:
161          (A) education;
162          (B) experience; and
163          (C) physical and mental impairment or condition.
164          (f) "State institution of higher education" means an institution listed in Section
165     53B-3-102.
166          (g) "Valid prescription" is a prescription, as defined in Section 58-37-2, that is:
167          (i) prescribed for a controlled substance for use by the employee for whom it is
168     prescribed; and
169          (ii) not altered or forged.

170          (2) In accordance with this section, the commission may reduce or terminate an
171     employee's disability compensation for a disability claim for good cause shown by the
172     employer including if:
173          (a) the employer terminates the employee from the reemployment and the termination
174     is:
175          (i) reasonable;
176          (ii) for cause; and
177          (iii) as a result, in whole or in part, of:
178          (A) criminal conduct;
179          (B) violent conduct; or
180          (C) a violation of a reasonable, written workplace health, safety, licensure, or
181     nondiscrimination rule that is applied in a manner that is reasonable and nondiscriminatory;
182          (b) the employee is incarcerated in a correctional facility for a period of time that
183     would result in the termination of the employee's reemployment in accordance with a
184     reasonable, written workplace rule that is applied in a manner that is reasonable and
185     nondiscriminatory; or
186          (c) subject to Subsection (6), the employee is terminated from the reemployment:
187          (i) (A) for use of a controlled substance that the employee did not obtain under a valid
188     prescription;
189          (B) for intentional abuse of a controlled substance that the employee obtained under a
190     valid prescription, if the employee uses the controlled substance intentionally:
191          (I) in excess of a prescribed therapeutic amount; or
192          (II) in an otherwise abusive manner; or
193          (C) for the use of alcohol that results in intoxication from alcohol with a blood or
194     breath alcohol concentration of [.08] .05 grams or greater; and
195          (ii) in accordance with a reasonable, written workplace rule that is applied in a manner
196     that is reasonable and nondiscriminatory.
197          (3) Notwithstanding the other provisions of this section, the employee described in

198     Subsection (2) is eligible for medical benefits to the extent otherwise allowed under this title.
199          (4) (a) An employer or the employer's insurance carrier may file an application for a
200     hearing with the Division of Adjudication to request that an employee's disability
201     compensation for a disability claim be reduced or terminated under this section.
202          (b) An action under this Subsection (4) is barred if an application for a hearing is not
203     filed within one year from the day on which the employer terminates the employee from
204     reemployment as described in Subsection (2).
205          (c) An employer or the employer's insurance carrier shall notify the employee that the
206     employer or employer's insurance carrier has filed a request for a hearing under this section
207     within three business days of the day on which the filing is made.
208          (5) (a) The commission may reduce or terminate the disability compensation of an
209     employee for a disability claim if after a hearing requested under Subsection (4), the
210     commission determines that the conditions of Subsection (2) are met.
211          (b) The commission shall issue an order as to whether or not an employee's disability
212     compensation is reduced or terminated under this section by no later than 45 days from the day
213     on which an application for a hearing is filed.
214          (c) A reduction or termination of disability compensation under this Subsection (5)
215     takes effect on the day determined by the commission.
216          (d) If the disability compensation is ordered terminated or reduced, the employer or
217     employer's insurance carrier shall treat a resulting overpayment as an offset against the
218     employer's or employer's insurance carrier's future obligations to pay disability compensation to
219     the employee.
220          (6) (a) For purposes of Subsection (2)(c), the commission may consider a chemical test
221     that conforms to scientifically accepted analytical methods and procedures and includes
222     verification or confirmation of any positive test result by gas chromatography, gas
223     chromatography-mass spectroscopy, or other comparably reliable analytical method showing
224     that the employee has:
225          (i) in the employee's system during employment:

226          (A) any amount of a controlled substance or its metabolites if the employee did not
227     obtain the controlled substance under a valid prescription; or
228          (B) a controlled substance the employee obtained under a valid prescription or the
229     metabolites of the controlled substance if the amount in the employee's system is consistent
230     with the employee using the controlled substance intentionally:
231          (I) in excess of prescribed therapeutic amounts; or
232          (II) in an otherwise abusive manner; or
233          (ii) a blood or breath alcohol concentration of [.08] .05 grams or greater during
234     employment.
235          (b) A local governmental entity or state institution of higher education shall comply
236     with Title 34, Chapter 41, Local Governmental Entity Drug-Free Workplace Policies, in
237     engaging in a test for a controlled substance that is the basis of a presumption under this
238     section.
239          (7) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
240     commission may make rules:
241          (a) describing factors to be considered under Subsection (2); and
242          (b) related to the procedures for a request for a hearing under this section.
243          (8) The adjudication of a dispute arising under this section is governed by Part 8,
244     Adjudication.
245          (9) An issue related to an employee's cooperation with regard to a claim for
246     compensation for permanent total disability benefits is governed by Section 34A-2-413.