1     
UTAH PROTECTION OF PUBLIC EMPLOYEES ACT

2     
AMENDMENTS

3     
2022 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Daniel W. Thatcher

6     
House Sponsor: Merrill F. Nelson

7     

8     LONG TITLE
9     Committee Note:
10          The Government Operations Interim Committee recommended this bill.
11               Legislative Vote:     14 voting for     0 voting against     2 absent
12     General Description:
13          This bill amends the Utah Protection of Public Employees Act.
14     Highlighted Provisions:
15          This bill:
16          ▸     defines terms;
17          ▸     specifies the parties' burdens of proof in a civil action where a violation of the Utah
18     Protection of Public Employees Act is alleged; and
19          ▸     makes technical and conforming changes.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
26          26-61a-111, as last amended by Laws of Utah 2021, Chapter 344
27          67-21-2, as last amended by Laws of Utah 2013, Chapter 427

28          67-21-3, as last amended by Laws of Utah 2020, Chapter 365
29          67-21-3.5, as last amended by Laws of Utah 2018, Chapter 390
30          67-21-3.6, as enacted by Laws of Utah 2013, Chapter 427
31          67-21-3.7, as last amended by Laws of Utah 2018, Chapter 178
32          67-21-4, as last amended by Laws of Utah 2018, Chapter 178
33          67-21-6, as last amended by Laws of Utah 2013, Chapter 427
34     

35     Be it enacted by the Legislature of the state of Utah:
36          Section 1. Section 26-61a-111 is amended to read:
37          26-61a-111. Nondiscrimination for medical care or government employment --
38     Notice to prospective and current public employees -- No effect on private employers.
39          (1) For purposes of medical care, including an organ or tissue transplant, a patient's
40     use, in accordance with this chapter, of cannabis in a medicinal dosage form or a cannabis
41     product in a medicinal dosage form:
42          (a) is considered the equivalent of the authorized use of any other medication used at
43     the discretion of a physician; and
44          (b) does not constitute the use of an illicit substance or otherwise disqualify an
45     individual from needed medical care.
46          (2) (a) Notwithstanding any other provision of law and except as provided in
47     Subsection (2)(b), the state or any political subdivision shall treat an employee's use of medical
48     cannabis in accordance with this chapter or Section 58-37-3.7 in the same way the state or
49     political subdivision treats employee use of any prescribed controlled substance.
50          (b) A state or political subdivision employee who has a valid medical cannabis card is
51     not subject to [adverse] retaliatory action, as that term is defined in Section [67-21-2]
52     67-19a-101, for failing a drug test due to marijuana or tetrahydrocannabinol without evidence
53     that the employee was impaired or otherwise adversely affected in the employee's job
54     performance due to the use of medical cannabis.
55          (c) Subsections (2)(a) and (b) do not apply where the application of Subsection (2)(a)
56     or (b) would jeopardize federal funding, a federal security clearance, or any other federal
57     background determination required for the employee's position, or if the employee's position is
58     dependent on a license that is subject to federal regulations.

59          (3) (a) (i) A state employer or a political subdivision employer shall take the action
60     described in Subsection (3)(a)(ii) before:
61          (A) giving to a current employee an assignment or duty that arises from or directly
62     relates to an obligation under this chapter; or
63          (B) hiring a prospective employee whose assignments or duties would include an
64     assignment or duty that arises from or directly relates to an obligation under this chapter.
65          (ii) The employer described in Subsection (3)(a)(i) shall give the employee or
66     prospective employee described in Subsection (3)(a)(i) a written notice that notifies the
67     employee or prospective employee:
68          (A) that the employee's or prospective employee's job duties may require the employee
69     or prospective employee to engage in conduct which is in violation of the criminal laws of the
70     United States; and
71          (B) that in accepting a job or undertaking a duty described in Subsection (3)(a)(i),
72     although the employee or prospective employee is entitled to the protections of Title 67,
73     Chapter 21, Utah Protection of Public Employees Act, the employee may not object or refuse to
74     carry out an assignment or duty that may be a violation of the criminal laws of the United
75     States with respect to the manufacture, sale, or distribution of cannabis.
76          (b) The Division of Human Resource Management shall create, revise, and publish the
77     form of the notice described in Subsection (3)(a).
78          (c) Notwithstanding Subsection 67-21-3(3), an employee who has signed the notice
79     described in Subsection (3)(a) may not:
80          (i) claim in good faith that the employee's actions violate or potentially violate the laws
81     of the United States with respect to the manufacture, sale, or distribution of cannabis; or
82          (ii) refuse to carry out a directive that the employee reasonably believes violates the
83     criminal laws of the United States with respect to the manufacture, sale, or distribution of
84     cannabis.
85          (d) An employer may not take retaliatory action as defined in Section 67-19a-101
86     against a current employee who refuses to sign the notice described in Subsection (3)(a).
87          (4) Nothing in this section requires a private employer to accommodate the use of
88     medical cannabis or affects the ability of a private employer to have policies restricting the use
89     of medical cannabis by applicants or employees.

90          Section 2. Section 67-21-2 is amended to read:
91          67-21-2. Definitions.
92          As used in this chapter:
93          (1) "Abuse of authority" means an arbitrary or capricious exercise of power that:
94          (a) adversely affects the employment rights of another; or
95          (b) results in personal gain to the person exercising the authority or to another person.
96          [(2) "Adverse action" means to discharge, threaten, or discriminate against an
97     employee in a manner that affects the employee's employment, including compensation, terms,
98     conditions, location, rights, immunities, promotions, or privileges.]
99          [(3)] (2) "Communicate" means a verbal, written, broadcast, or other communicated
100     report.
101          [(4)] (3) "Damages" means general and special damages for injury or loss caused by
102     each violation of this chapter.
103          [(5)] (4) "Employee" means a person who performs a service for wages or other
104     remuneration under a contract of hire, written or oral, express or implied.
105          [(6)] (5) (a) "Employer" means the public body or public entity that employs the
106     employee.
107          (b) "Employer" includes an agent of an employer.
108          (6) "Good faith" means that an employee acts with:
109          (a) subjective good faith; and
110          (b) the objective good faith of a reasonable employee.
111          (7) "Gross mismanagement" means action or failure to act by a person, with respect to
112     a person's responsibility, that causes significant harm or risk of harm to the mission of the
113     public entity or public body that employs, or is managed or controlled by, the person.
114          (8) "Judicial employee" means an employee of the judicial branch of state government.
115          (9) "Legislative employee" means an employee of the legislative branch of state
116     government.
117          (10) "Political subdivision employee" means an employee of a political subdivision of
118     the state.
119          (11) "Public body" means any of the following:
120          (a) a state officer, employee, agency, department, division, bureau, board, commission,

121     council, authority, educational institution, or any other body in the executive branch of state
122     government;
123          (b) an agency, board, commission, council, institution member, or employee of the
124     legislative branch of state government;
125          (c) a county, city, town, regional governing body, council, school district, local district,
126     special service district, or municipal corporation, board, department, commission, council,
127     agency, or any member or employee of them;
128          (d) any other body that is created by state or local authority, or that is primarily funded
129     by or through state or local authority, or any member or employee of that body;
130          (e) a law enforcement agency or any member or employee of a law enforcement
131     agency; and
132          (f) the judiciary and any member or employee of the judiciary.
133          (12) "Public entity" means a department, division, board, council, committee,
134     institution, office, bureau, or other similar administrative unit of the executive branch of state
135     government.
136          (13) "Public entity employee" means an employee of a public entity.
137          (14) "Retaliatory action" [is as] means the same as that term is defined in Section
138     67-19a-101.
139          (15) "State institution of higher education" [is as] means the same as that term is
140     defined in Section 53B-3-102.
141          (16) "Unethical conduct" means conduct that violates a provision of Title 67, Chapter
142     16, Utah Public Officers' and Employees' Ethics Act.
143          Section 3. Section 67-21-3 is amended to read:
144          67-21-3. Reporting of governmental waste or violations of law -- Employer action
145     -- Exceptions.
146          (1) (a) An employer may not take [adverse] retaliatory action against an employee
147     because the employee, or a person authorized to act on behalf of the employee, communicates
148     in good faith:
149          (i) the waste or misuse of public funds, property, or manpower;
150          (ii) a violation or suspected violation of a law, rule, or regulation adopted under the law
151     of this state, a political subdivision of this state, or any recognized entity of the United States;

152     or
153          (iii) as it relates to a state government employer:
154          (A) gross mismanagement;
155          (B) abuse of authority; or
156          (C) unethical conduct.
157          (b) For purposes of Subsection (1)(a), an employee is presumed to have communicated
158     in good faith if the employee gives written notice or otherwise formally communicates the
159     conduct described in Subsection (1)(a) to:
160          (i) a person in authority over the person alleged to have engaged in the conduct
161     described in Subsection (1)(a);
162          (ii) the attorney general's office;
163          (iii) law enforcement, if the conduct is criminal in nature;
164          (iv) if the employee is a public entity employee, public body employee, legislative
165     employee, or a judicial employee:
166          (A) the state auditor's office;
167          (B) the president of the Senate;
168          (C) the speaker of the House of Representatives;
169          (D) the Office of Legislative Auditor General;
170          (E) the governor's office;
171          (F) the state court administrator; or
172          (G) the Division of Finance;
173          (v) if the employee is a public entity employee, but not an employee of a state
174     institution of higher education, the director of the Division of Purchasing and General Services;
175          (vi) if the employee is a political subdivision employee:
176          (A) the legislative body, or a member of the legislative body, of the political
177     subdivision;
178          (B) the governing body, or a member of the governing body, of the political
179     subdivision;
180          (C) the top executive of the political subdivision; or
181          (D) any government official with authority to audit the political subdivision or the
182     applicable part of the political subdivision; or

183          (vii) if the employee is an employee of a state institution of higher education:
184          (A) the Utah Board of Higher Education or a member of the Utah Board of Higher
185     Education;
186          (B) the commissioner of higher education;
187          (C) the president of the state institution of higher education where the employee is
188     employed; or
189          (D) the entity that conducts audits of the state institution of higher education where the
190     employee is employed.
191          (c) The presumption described in Subsection (1)(b) may be rebutted by showing that
192     the employee knew or reasonably ought to have known that the report is malicious, false, or
193     frivolous.
194          (2) An employer may not take [adverse] retaliatory action against an employee because
195     an employee participates or gives information in an investigation, hearing, court proceeding,
196     legislative or other inquiry, or other form of administrative review held by the public body.
197          (3) An employer may not take [adverse] retaliatory action against an employee because
198     the employee has objected to or refused to carry out a directive that the employee reasonably
199     believes violates a law of this state, a political subdivision of this state, or the United States, or
200     a rule or regulation adopted under the authority of the laws of this state, a political subdivision
201     of this state, or the United States.
202          (4) An employer may not implement rules or policies that unreasonably restrict an
203     employee's ability to document:
204          (a) the waste or misuse of public funds, property, or manpower;
205          (b) a violation or suspected violation of any law, rule, or regulation; or
206          (c) as it relates to a state government employer:
207          (i) gross mismanagement;
208          (ii) abuse of authority; or
209          (iii) unethical conduct.
210          Section 4. Section 67-21-3.5 is amended to read:
211          67-21-3.5. Administrative review of retaliatory action against a public entity
212     employee.
213          (1) A public entity employee who believes that the employee's employer has taken

214     retaliatory action against the employee in violation of this chapter may file a grievance with the
215     Career Service Review Office in accordance with Section 67-19a-402.5 and subject to Section
216     67-21-4.
217          (2) If the Career Service Review Office determines that retaliatory action is taken in
218     violation of this chapter against the public entity employee, the Career Service Review Office
219     may order:
220          (a) reinstatement of the public entity employee at the same level held by the public
221     entity employee before the retaliatory action;
222          (b) the payment of back wages, in accordance with Subsection 67-19a-406(5)(b);
223          (c) full reinstatement of benefits;
224          (d) full reinstatement of other employment rights; or
225          (e) if the retaliatory action includes failure to promote, as described in Subsection
226     67-19a-101(11)(d), a pay raise that results in the employee receiving the pay that the employee
227     would have received if the [person] employee had been promoted.
228          (3) A public entity employer has the burden to prove by substantial evidence that the
229     public entity employer's action was justified.
230          (4) A public entity employee or public entity employer may appeal a determination of
231     the Career Service Review Office as provided in Section 67-19a-402.5.
232          Section 5. Section 67-21-3.6 is amended to read:
233          67-21-3.6. Administrative review for political subdivision employees.
234          (1) (a) A political subdivision may adopt an ordinance to establish an independent
235     personnel board to hear and take action on a complaint alleging [adverse] retaliatory action.
236          (b) The ordinance described in Subsection (1)(a) shall include:
237          (i) procedures for filing a complaint and conducting a hearing; and
238          (ii) a burden of proof on the employer to establish by substantial evidence that the
239     employer's action was justified by reasons unrelated to the employee's good faith actions under
240     Section 67-21-3.
241          (2) If a political subdivision adopts an ordinance described in Subsection (1), a
242     political subdivision employee may file a complaint with the independent personnel board
243     alleging [adverse] retaliatory action.
244          (3) If an independent personnel board finds that [adverse] retaliatory action is taken in

245     violation of the ordinance described in Subsection (1)(a), the independent personnel board may
246     order:
247          (a) reinstatement of the employee at the same level as before the [adverse] retaliatory
248     action;
249          (b) the payment of back wages;
250          (c) full reinstatement of fringe benefits;
251          (d) full reinstatement of seniority rights; or
252          (e) if the [adverse] retaliatory action includes failure to promote, as described in
253     Subsection 67-19a-101(11)(d), a pay raise that results in the employee receiving the pay that
254     the employee would have received if the person had been promoted.
255          Section 6. Section 67-21-3.7 is amended to read:
256          67-21-3.7. Administrative review for state institution of higher education
257     employees.
258          (1) (a) As used in this section, "independent personnel board" means a board where no
259     member of the board:
260          (i) is in the same department as the complainant;
261          (ii) is a supervisor of the complainant; or
262          (iii) has a conflict of interest in relation to the complainant or an allegation made in the
263     complaint.
264          (b) A state institution of higher education shall adopt a policy to establish an
265     independent personnel board to hear and take action on a complaint alleging [adverse]
266     retaliatory action.
267          (c) The policy described in Subsection (1)(b) shall include:
268          (i) procedures for filing a complaint and conducting a hearing; and
269          (ii) a burden of proof on the employer to establish by substantial evidence that the
270     employer's action was justified by reasons unrelated to the employee's good faith actions under
271     Section 67-21-3.
272          (2) (a) An employee of a state institution of higher education may file a complaint with
273     the independent personnel board described in Subsection (1)(b) alleging [adverse] retaliatory
274     action.
275          (b) An independent personnel board that receives a complaint under Subsection (2)(a)

276     shall hear the matter, resolve the complaint, and take action under Subsection (3) within the
277     later of:
278          (i) 30 days after the day on which the employee files the complaint; or
279          (ii) a longer period of time, not to exceed 30 additional days, if the employee and the
280     independent personnel board mutually agree on the longer time period.
281          (3) If an independent personnel board finds that [adverse] retaliatory action is taken in
282     violation of the policy described in Subsection (1)(b), the independent personnel board may
283     order, or recommend to a final decision maker:
284          (a) reinstatement of the employee at the same level as before the [adverse] retaliatory
285     action;
286          (b) the payment of back wages;
287          (c) full reinstatement of fringe benefits;
288          (d) full reinstatement of seniority rights; or
289          (e) if the [adverse] retaliatory action includes failure to promote, as described in
290     Subsection 67-19a-101(11)(d), a pay raise that results in the employee receiving the pay that
291     the employee would have received if the person had been promoted.
292          (4) A final decision maker who receives a recommendation under Subsection (3) shall
293     render a decision and enter an order within seven days after the day on which the final decision
294     maker receives the recommendation.
295          Section 7. Section 67-21-4 is amended to read:
296          67-21-4. Choice of forum -- Remedies for employee bringing action -- Proof
297     required.
298          (1) (a) Except as provided in Subsection (1)(b) or (d), and subject to Subsections (1)(d)
299     through (e), an employee who alleges a violation of this chapter may bring a civil action for
300     appropriate injunctive relief, damages, or both, within 180 days after the occurrence of the
301     alleged violation of this chapter.
302          (b) Except as provided in Subsection (1)(d):
303          (i) an employee of a political subdivision that has adopted an ordinance described in
304     Section 67-21-3.6:
305          (A) may bring a civil action described in Subsection (1)(a) within 180 days after the
306     day on which the employee has exhausted administrative remedies; and

307          (B) may not bring a civil action described in Subsection (1)(a) until the employee has
308     exhausted administrative remedies; and
309          (ii) an employee of a state institution of higher education:
310          (A) may bring a civil action described in Subsection (1)(a) within 180 days after the
311     day on which the employee has exhausted administrative remedies; and
312          (B) may not bring a civil action described in Subsection (1)(a) until the employee has
313     exhausted administrative remedies.
314          (c) Except as provided in Subsection (1)(d), a public entity employee who is not a
315     legislative employee or a judicial employee may bring a claim of retaliatory action by selecting
316     one of the following methods:
317          (i) filing a grievance with the Career Service Review Office in accordance with Section
318     67-19a-402.5; or
319          (ii) bringing a civil action for appropriate injunctive relief, damages, or both, within
320     180 days after the occurrence of the alleged violation of this chapter.
321          (d) (i) A claimant may bring an action after the 180-day limit described in this
322     Subsection (1) if:
323          (A) the claimant originally brought the action within the 180-day time limit;
324          (B) the action described in Subsection (1)(d)(i)(A) failed or was dismissed for a reason
325     other than on the merits; and
326          (C) the claimant brings the new action within 180 days after the day on which the
327     claimant originally brought the action under Subsection (1)(d)(i)(A).
328          (ii) A claimant may commence a new action under this Subsection (1)(d) only once.
329          (e) A public entity employee who files a grievance under Subsection (1)(d)(i):
330          (i) may not, at any time, bring a civil action in relation to the subject matter of the
331     grievance;
332          (ii) may seek a remedy described in Subsection 67-21-3.5(2); and
333          (iii) waives the right to seek a remedy or a type of damages not included in Subsection
334     67-21-3.5(2).
335          (f) A public entity employee who files a civil action under Subsection (1)(d)(ii) may
336     not, at any time, file a grievance with the Career Service Review Office in relation to the
337     subject matter of the civil action.

338          (2) An employee who brings a civil action under this section shall bring the action in
339     the district court for the county where the alleged violation occurred, the county where the
340     complainant resides, or the county where the person against whom the civil complaint is filed
341     resides or has the person's principal place of business.
342          [(3) To prevail in an action brought under this section, the employer shall prove by
343     substantial evidence that the employer's action was justified.]
344          (3) (a) An employee who brings an action under this section has the burden of proving
345     by a preponderance of the evidence that the employee, in good faith, engaged in protected
346     reporting and suffered a retaliatory action.
347          (b) If the employee satisfies the burden described in Subsection (3)(a), the employer
348     has the burden of proving by substantial evidence that the employer's action was justified.
349          (c) If the employer satisfies the burden described in Subsection (3)(b), the employee
350     has the burden of proving by a preponderance of the evidence that the employer's justification
351     is pretextual.
352          Section 8. Section 67-21-6 is amended to read:
353          67-21-6. Civil fine.
354          (1) (a) A person who violates this chapter is liable for a civil fine of not more than
355     $500.
356          (b) The person who takes [an adverse] a retaliatory action against an employee in
357     violation of this chapter, and not the public body that employs the employee, shall, after
358     receiving notice and an opportunity to be heard, pay the civil fine under this Subsection (1).
359          (c) If a person is ordered to pay a civil fine under this Subsection (1), the employer may
360     dismiss the person who took the [adverse] retaliatory action in violation of this chapter.
361          (2) A civil fine ordered under this chapter shall be submitted to the state treasurer for
362     deposit in the General Fund.
363          (3) The civil fine described in this section may be imposed if a violation of this chapter
364     is found by:
365          (a) an independent personnel board described in Subsection 67-21-3.6(1)(a) or
366     67-21-3.7(1)(a);
367          (b) the Career Service Review Office; or
368          (c) a court.