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8 LONG TITLE
9 General Description:
10 This bill amends the Utah Protection of Public Employees Act.
11 Highlighted Provisions:
12 This bill:
13 ▸ defines terms;
14 ▸ specifies the parties' burdens of proof in a civil action where a violation of the Utah
15 Protection of Public Employees Act is alleged; and
16 ▸ makes technical and conforming changes.
17 Money Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 None
21 Utah Code Sections Affected:
22 AMENDS:
23 26-61a-111, as last amended by Laws of Utah 2021, Chapter 344
24 67-21-2, as last amended by Laws of Utah 2013, Chapter 427
25 67-21-3, as last amended by Laws of Utah 2020, Chapter 365
26 67-21-3.5, as last amended by Laws of Utah 2018, Chapter 390
27 67-21-3.6, as enacted by Laws of Utah 2013, Chapter 427
28 67-21-3.7, as last amended by Laws of Utah 2018, Chapter 178
29 67-21-4, as last amended by Laws of Utah 2018, Chapter 178
30 67-21-6, as last amended by Laws of Utah 2013, Chapter 427
31
32 Be it enacted by the Legislature of the state of Utah:
33 Section 1. Section 26-61a-111 is amended to read:
34 26-61a-111. Nondiscrimination for medical care or government employment --
35 Notice to prospective and current public employees -- No effect on private employers.
36 (1) For purposes of medical care, including an organ or tissue transplant, a patient's
37 use, in accordance with this chapter, of cannabis in a medicinal dosage form or a cannabis
38 product in a medicinal dosage form:
39 (a) is considered the equivalent of the authorized use of any other medication used at
40 the discretion of a physician; and
41 (b) does not constitute the use of an illicit substance or otherwise disqualify an
42 individual from needed medical care.
43 (2) (a) Notwithstanding any other provision of law and except as provided in
44 Subsection (2)(b), the state or any political subdivision shall treat an employee's use of medical
45 cannabis in accordance with this chapter or Section 58-37-3.7 in the same way the state or
46 political subdivision treats employee use of any prescribed controlled substance.
47 (b) A state or political subdivision employee who has a valid medical cannabis card is
48 not subject to [
49 67-19a-101, for failing a drug test due to marijuana or tetrahydrocannabinol without evidence
50 that the employee was impaired or otherwise adversely affected in the employee's job
51 performance due to the use of medical cannabis.
52 (c) Subsections (2)(a) and (b) do not apply where the application of Subsection (2)(a)
53 or (b) would jeopardize federal funding, a federal security clearance, or any other federal
54 background determination required for the employee's position, or if the employee's position is
55 dependent on a license that is subject to federal regulations.
56 (3) (a) (i) A state employer or a political subdivision employer shall take the action
57 described in Subsection (3)(a)(ii) before:
58 (A) giving to a current employee an assignment or duty that arises from or directly
59 relates to an obligation under this chapter; or
60 (B) hiring a prospective employee whose assignments or duties would include an
61 assignment or duty that arises from or directly relates to an obligation under this chapter.
62 (ii) The employer described in Subsection (3)(a)(i) shall give the employee or
63 prospective employee described in Subsection (3)(a)(i) a written notice that notifies the
64 employee or prospective employee:
65 (A) that the employee's or prospective employee's job duties may require the employee
66 or prospective employee to engage in conduct which is in violation of the criminal laws of the
67 United States; and
68 (B) that in accepting a job or undertaking a duty described in Subsection (3)(a)(i),
69 although the employee or prospective employee is entitled to the protections of Title 67,
70 Chapter 21, Utah Protection of Public Employees Act, the employee may not object or refuse to
71 carry out an assignment or duty that may be a violation of the criminal laws of the United
72 States with respect to the manufacture, sale, or distribution of cannabis.
73 (b) The Division of Human Resource Management shall create, revise, and publish the
74 form of the notice described in Subsection (3)(a).
75 (c) Notwithstanding Subsection 67-21-3(3), an employee who has signed the notice
76 described in Subsection (3)(a) may not:
77 (i) claim in good faith that the employee's actions violate or potentially violate the laws
78 of the United States with respect to the manufacture, sale, or distribution of cannabis; or
79 (ii) refuse to carry out a directive that the employee reasonably believes violates the
80 criminal laws of the United States with respect to the manufacture, sale, or distribution of
81 cannabis.
82 (d) An employer may not take retaliatory action as defined in Section 67-19a-101
83 against a current employee who refuses to sign the notice described in Subsection (3)(a).
84 (4) Nothing in this section requires a private employer to accommodate the use of
85 medical cannabis or affects the ability of a private employer to have policies restricting the use
86 of medical cannabis by applicants or employees.
87 Section 2. Section 67-21-2 is amended to read:
88 67-21-2. Definitions.
89 As used in this chapter:
90 (1) "Abuse of authority" means an arbitrary or capricious exercise of power that:
91 (a) adversely affects the employment rights of another; or
92 (b) results in personal gain to the person exercising the authority or to another person.
93 [
94
95
96 [
97 report.
98 [
99 each violation of this chapter.
100 [
101 remuneration under a contract of hire, written or oral, express or implied.
102 [
103 employee.
104 (b) "Employer" includes an agent of an employer.
105 (6) "Good faith" means that an employee acts with:
106 (a) subjective good faith; and
107 (b) the objective good faith of a reasonable employee.
108 (7) "Gross mismanagement" means action or failure to act by a person, with respect to
109 a person's responsibility, that causes significant harm or risk of harm to the mission of the
110 public entity or public body that employs, or is managed or controlled by, the person.
111 (8) "Judicial employee" means an employee of the judicial branch of state government.
112 (9) "Legislative employee" means an employee of the legislative branch of state
113 government.
114 (10) "Political subdivision employee" means an employee of a political subdivision of
115 the state.
116 (11) "Public body" means any of the following:
117 (a) a state officer, employee, agency, department, division, bureau, board, commission,
118 council, authority, educational institution, or any other body in the executive branch of state
119 government;
120 (b) an agency, board, commission, council, institution member, or employee of the
121 legislative branch of state government;
122 (c) a county, city, town, regional governing body, council, school district, local district,
123 special service district, or municipal corporation, board, department, commission, council,
124 agency, or any member or employee of them;
125 (d) any other body that is created by state or local authority, or that is primarily funded
126 by or through state or local authority, or any member or employee of that body;
127 (e) a law enforcement agency or any member or employee of a law enforcement
128 agency; and
129 (f) the judiciary and any member or employee of the judiciary.
130 (12) "Public entity" means a department, division, board, council, committee,
131 institution, office, bureau, or other similar administrative unit of the executive branch of state
132 government.
133 (13) "Public entity employee" means an employee of a public entity.
134 (14) "Retaliatory action" [
135 67-19a-101.
136 (15) "State institution of higher education" [
137 defined in Section 53B-3-102.
138 (16) "Unethical conduct" means conduct that violates a provision of Title 67, Chapter
139 16, Utah Public Officers' and Employees' Ethics Act.
140 Section 3. Section 67-21-3 is amended to read:
141 67-21-3. Reporting of governmental waste or violations of law -- Employer action
142 -- Exceptions.
143 (1) (a) An employer may not take [
144 because the employee, or a person authorized to act on behalf of the employee, communicates
145 in good faith:
146 (i) the waste or misuse of public funds, property, or manpower;
147 (ii) a violation or suspected violation of a law, rule, or regulation adopted under the law
148 of this state, a political subdivision of this state, or any recognized entity of the United States;
149 or
150 (iii) as it relates to a state government employer:
151 (A) gross mismanagement;
152 (B) abuse of authority; or
153 (C) unethical conduct.
154 (b) For purposes of Subsection (1)(a), an employee is presumed to have communicated
155 in good faith if the employee gives written notice or otherwise formally communicates the
156 conduct described in Subsection (1)(a) to:
157 (i) a person in authority over the person alleged to have engaged in the conduct
158 described in Subsection (1)(a);
159 (ii) the attorney general's office;
160 (iii) law enforcement, if the conduct is criminal in nature;
161 (iv) if the employee is a public entity employee, public body employee, legislative
162 employee, or a judicial employee:
163 (A) the state auditor's office;
164 (B) the president of the Senate;
165 (C) the speaker of the House of Representatives;
166 (D) the Office of Legislative Auditor General;
167 (E) the governor's office;
168 (F) the state court administrator; or
169 (G) the Division of Finance;
170 (v) if the employee is a public entity employee, but not an employee of a state
171 institution of higher education, the director of the Division of Purchasing and General Services;
172 (vi) if the employee is a political subdivision employee:
173 (A) the legislative body, or a member of the legislative body, of the political
174 subdivision;
175 (B) the governing body, or a member of the governing body, of the political
176 subdivision;
177 (C) the top executive of the political subdivision; or
178 (D) any government official with authority to audit the political subdivision or the
179 applicable part of the political subdivision; or
180 (vii) if the employee is an employee of a state institution of higher education:
181 (A) the Utah Board of Higher Education or a member of the Utah Board of Higher
182 Education;
183 (B) the commissioner of higher education;
184 (C) the president of the state institution of higher education where the employee is
185 employed; or
186 (D) the entity that conducts audits of the state institution of higher education where the
187 employee is employed.
188 (c) The presumption described in Subsection (1)(b) may be rebutted by showing that
189 the employee knew or reasonably ought to have known that the report is malicious, false, or
190 frivolous.
191 (2) An employer may not take [
192 an employee participates or gives information in an investigation, hearing, court proceeding,
193 legislative or other inquiry, or other form of administrative review held by the public body.
194 (3) An employer may not take [
195 the employee has objected to or refused to carry out a directive that the employee reasonably
196 believes violates a law of this state, a political subdivision of this state, or the United States, or
197 a rule or regulation adopted under the authority of the laws of this state, a political subdivision
198 of this state, or the United States.
199 (4) An employer may not implement rules or policies that unreasonably restrict an
200 employee's ability to document:
201 (a) the waste or misuse of public funds, property, or manpower;
202 (b) a violation or suspected violation of any law, rule, or regulation; or
203 (c) as it relates to a state government employer:
204 (i) gross mismanagement;
205 (ii) abuse of authority; or
206 (iii) unethical conduct.
207 Section 4. Section 67-21-3.5 is amended to read:
208 67-21-3.5. Administrative review of retaliatory action against a public entity
209 employee.
210 (1) A public entity employee who believes that the employee's employer has taken
211 retaliatory action against the employee in violation of this chapter may file a grievance with the
212 Career Service Review Office in accordance with Section 67-19a-402.5 and subject to Section
213 67-21-4.
214 (2) If the Career Service Review Office determines that retaliatory action is taken in
215 violation of this chapter against the public entity employee, the Career Service Review Office
216 may order:
217 (a) reinstatement of the public entity employee at the same level held by the public
218 entity employee before the retaliatory action;
219 (b) the payment of back wages, in accordance with Subsection 67-19a-406(5)(b);
220 (c) full reinstatement of benefits;
221 (d) full reinstatement of other employment rights; or
222 (e) if the retaliatory action includes failure to promote, as described in Subsection
223 67-19a-101(11)(d), a pay raise that results in the employee receiving the pay that the employee
224 would have received if the [
225 (3) A public entity employer has the burden to prove by substantial evidence that the
226 public entity employer's action was justified.
227 (4) A public entity employee or public entity employer may appeal a determination of
228 the Career Service Review Office as provided in Section 67-19a-402.5.
229 Section 5. Section 67-21-3.6 is amended to read:
230 67-21-3.6. Administrative review for political subdivision employees.
231 (1) (a) A political subdivision may adopt an ordinance to establish an independent
232 personnel board to hear and take action on a complaint alleging [
233 (b) The ordinance described in Subsection (1)(a) shall include:
234 (i) procedures for filing a complaint and conducting a hearing; and
235 (ii) a burden of proof on the employer to establish by substantial evidence that the
236 employer's action was justified by reasons unrelated to the employee's good faith actions under
237 Section 67-21-3.
238 (2) If a political subdivision adopts an ordinance described in Subsection (1), a
239 political subdivision employee may file a complaint with the independent personnel board
240 alleging [
241 (3) If an independent personnel board finds that [
242 violation of the ordinance described in Subsection (1)(a), the independent personnel board may
243 order:
244 (a) reinstatement of the employee at the same level as before the [
245 action;
246 (b) the payment of back wages;
247 (c) full reinstatement of fringe benefits;
248 (d) full reinstatement of seniority rights; or
249 (e) if the [
250 Subsection 67-19a-101(11)(d), a pay raise that results in the employee receiving the pay that
251 the employee would have received if the person had been promoted.
252 Section 6. Section 67-21-3.7 is amended to read:
253 67-21-3.7. Administrative review for state institution of higher education
254 employees.
255 (1) (a) As used in this section, "independent personnel board" means a board where no
256 member of the board:
257 (i) is in the same department as the complainant;
258 (ii) is a supervisor of the complainant; or
259 (iii) has a conflict of interest in relation to the complainant or an allegation made in the
260 complaint.
261 (b) A state institution of higher education shall adopt a policy to establish an
262 independent personnel board to hear and take action on a complaint alleging [
263 retaliatory action.
264 (c) The policy described in Subsection (1)(b) shall include:
265 (i) procedures for filing a complaint and conducting a hearing; and
266 (ii) a burden of proof on the employer to establish by substantial evidence that the
267 employer's action was justified by reasons unrelated to the employee's good faith actions under
268 Section 67-21-3.
269 (2) (a) An employee of a state institution of higher education may file a complaint with
270 the independent personnel board described in Subsection (1)(b) alleging [
271 action.
272 (b) An independent personnel board that receives a complaint under Subsection (2)(a)
273 shall hear the matter, resolve the complaint, and take action under Subsection (3) within the
274 later of:
275 (i) 30 days after the day on which the employee files the complaint; or
276 (ii) a longer period of time, not to exceed 30 additional days, if the employee and the
277 independent personnel board mutually agree on the longer time period.
278 (3) If an independent personnel board finds that [
279 violation of the policy described in Subsection (1)(b), the independent personnel board may
280 order, or recommend to a final decision maker:
281 (a) reinstatement of the employee at the same level as before the [
282 action;
283 (b) the payment of back wages;
284 (c) full reinstatement of fringe benefits;
285 (d) full reinstatement of seniority rights; or
286 (e) if the [
287 Subsection 67-19a-101(11)(d), a pay raise that results in the employee receiving the pay that
288 the employee would have received if the person had been promoted.
289 (4) A final decision maker who receives a recommendation under Subsection (3) shall
290 render a decision and enter an order within seven days after the day on which the final decision
291 maker receives the recommendation.
292 Section 7. Section 67-21-4 is amended to read:
293 67-21-4. Choice of forum -- Remedies for employee bringing action -- Proof
294 required.
295 (1) (a) Except as provided in Subsection (1)(b) or (d), and subject to Subsections (1)(d)
296 through (e), an employee who alleges a violation of this chapter may bring a civil action for
297 appropriate injunctive relief, damages, or both, within 180 days after the occurrence of the
298 alleged violation of this chapter.
299 (b) Except as provided in Subsection (1)(d):
300 (i) an employee of a political subdivision that has adopted an ordinance described in
301 Section 67-21-3.6:
302 (A) may bring a civil action described in Subsection (1)(a) within 180 days after the
303 day on which the employee has exhausted administrative remedies; and
304 (B) may not bring a civil action described in Subsection (1)(a) until the employee has
305 exhausted administrative remedies; and
306 (ii) an employee of a state institution of higher education:
307 (A) may bring a civil action described in Subsection (1)(a) within 180 days after the
308 day on which the employee has exhausted administrative remedies; and
309 (B) may not bring a civil action described in Subsection (1)(a) until the employee has
310 exhausted administrative remedies.
311 (c) Except as provided in Subsection (1)(d), a public entity employee who is not a
312 legislative employee or a judicial employee may bring a claim of retaliatory action by selecting
313 one of the following methods:
314 (i) filing a grievance with the Career Service Review Office in accordance with Section
315 67-19a-402.5; or
316 (ii) bringing a civil action for appropriate injunctive relief, damages, or both, within
317 180 days after the occurrence of the alleged violation of this chapter.
318 (d) (i) A claimant may bring an action after the 180-day limit described in this
319 Subsection (1) if:
320 (A) the claimant originally brought the action within the 180-day time limit;
321 (B) the action described in Subsection (1)(d)(i)(A) failed or was dismissed for a reason
322 other than on the merits; and
323 (C) the claimant brings the new action within 180 days after the day on which the
324 claimant originally brought the action under Subsection (1)(d)(i)(A).
325 (ii) A claimant may commence a new action under this Subsection (1)(d) only once.
326 (e) A public entity employee who files a grievance under Subsection (1)(d)(i):
327 (i) may not, at any time, bring a civil action in relation to the subject matter of the
328 grievance;
329 (ii) may seek a remedy described in Subsection 67-21-3.5(2); and
330 (iii) waives the right to seek a remedy or a type of damages not included in Subsection
331 67-21-3.5(2).
332 (f) A public entity employee who files a civil action under Subsection (1)(d)(ii) may
333 not, at any time, file a grievance with the Career Service Review Office in relation to the
334 subject matter of the civil action.
335 (2) An employee who brings a civil action under this section shall bring the action in
336 the district court for the county where the alleged violation occurred, the county where the
337 complainant resides, or the county where the person against whom the civil complaint is filed
338 resides or has the person's principal place of business.
339 [
340
341 (3) (a) An employee who brings an action under this section has the burden of proving
342 by a preponderance of the evidence that the employee, in good faith, engaged in protected
343 reporting and suffered a retaliatory action.
344 (b) If the employee satisfies the burden described in Subsection (3)(a), the employer
345 has the burden of proving by substantial evidence that the employer's action was justified.
346 (c) If the employer satisfies the burden described in Subsection (3)(b), the employee
347 has the burden of proving by a preponderance of the evidence that the employer's justification
348 is pretextual.
349 Section 8. Section 67-21-6 is amended to read:
350 67-21-6. Civil fine.
351 (1) (a) A person who violates this chapter is liable for a civil fine of not more than
352 $500.
353 (b) The person who takes [
354 violation of this chapter, and not the public body that employs the employee, shall, after
355 receiving notice and an opportunity to be heard, pay the civil fine under this Subsection (1).
356 (c) If a person is ordered to pay a civil fine under this Subsection (1), the employer may
357 dismiss the person who took the [
358 (2) A civil fine ordered under this chapter shall be submitted to the state treasurer for
359 deposit in the General Fund.
360 (3) The civil fine described in this section may be imposed if a violation of this chapter
361 is found by:
362 (a) an independent personnel board described in Subsection 67-21-3.6(1)(a) or
363 67-21-3.7(1)(a);
364 (b) the Career Service Review Office; or
365 (c) a court.
366