1     
LOCAL GOVERNMENTAL ENTITY DRUG-FREE WORKPLACE

2     
POLICIES AMENDMENTS

3     
2024 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: A. Cory Maloy

6     
Senate Sponsor: Michael S. Kennedy

7     

8     LONG TITLE
9     General Description:
10          This bill amends provisions related to local government entity drug-free workplace
11     policies.
12     Highlighted Provisions:
13          This bill:
14          ▸     defines terms;
15          ▸     amends the requirements for a written policy or ordinance of certain local
16     government entities for drug testing of employees, volunteers, potential employees,
17     and potential volunteers;
18          ▸     permits oral drug testing in addition to urine testing; and
19          ▸     makes technical changes.
20     Money Appropriated in this Bill:
21          None
22     Other Special Clauses:
23          None
24     Utah Code Sections Affected:
25     AMENDS:
26          34-41-101, as last amended by Laws of Utah 2023, Chapter 16
27          34-41-104, as last amended by Laws of Utah 1998, Chapter 13
28          34A-2-302, as last amended by Laws of Utah 2020, Chapter 18
29     REPEALS AND REENACTS:
30          34-41-103, as last amended by Laws of Utah 2008, Chapter 382
31     

32     Be it enacted by the Legislature of the state of Utah:
33          Section 1. Section 34-41-101 is amended to read:
34          34-41-101. Definitions.
35          As used in this chapter:
36          (1) "Donor" means an employee, a volunteer, a prospective employee, or a prospective
37     volunteer of a local government entity or a state institution of higher education.
38          [(1)] (2) "Drug" means any substance recognized as a drug in the United States
39     Pharmacopeia, the National Formulary, the Homeopathic Pharmacopeia, or other drug
40     compendia, including Title 58, Chapter 37, Utah Controlled Substances Act, or supplement to
41     any of those compendia.
42          [(2)] (3) "Drug testing" means the scientific analysis for the presence of drugs or their
43     metabolites in the human body in accordance with the definitions and terms of this chapter.
44          [(3)] (4) "Local governmental employee" means any person or officer in the service of
45     a local governmental entity or state institution of higher education for compensation.
46          [(4)] (5) (a) "Local governmental entity" means any political subdivision of Utah
47     including any county, municipality, local school district, special district, special service district,
48     or any administrative subdivision of those entities.
49          (b) "Local governmental entity" does not mean Utah state government or its
50     administrative subdivisions provided for in Sections 63A-17-1001 through 63A-17-1006.
51          [(5)] (6) "Periodic testing" means preselected and preannounced drug testing of
52     employees or volunteers conducted on a regular schedule.
53          [(6)] (7) "Prospective employee" means any person who has made a written or oral
54     application to become an employee of a local governmental entity or a state institution of
55     higher education.
56          [(7)] (8) "Random testing" means the unannounced drug testing of an employee or
57     volunteer who was selected for testing by using a method uninfluenced by any personal
58     characteristics other than job category.
59          [(8)] (9) "Reasonable suspicion for drug testing" means an articulated belief based on
60     the recorded specific facts and reasonable inferences drawn from those facts that a local
61     government employee or volunteer is in violation of the drug-free workplace policy.
62          [(9)] (10) "Rehabilitation testing" means unannounced but preselected drug testing
63     done as part of a program of counseling, education, and treatment of an employee or volunteer
64     in conjunction with the drug-free workplace policy.
65          [(10)] (11) "Safety sensitive position" means any local governmental or state institution
66     of higher education position involving duties which directly affects the safety of governmental
67     employees, the general public, or positions where there is access to controlled substances, as
68     defined in Title 58, Chapter 37, Utah Controlled Substances Act, during the course of
69     performing job duties.
70          [(11)] (12) "Sample" means urine, blood, breath, saliva, or hair.
71          [(12)] (13) "State institution of higher education" means the institution as defined in
72     Section 53B-3-102.
73          [(13)] (14) "Volunteer" means any person who donates services as authorized by the
74     local governmental entity or state institution of higher education without pay or other
75     compensation except expenses actually and reasonably incurred.
76          Section 2. Section 34-41-103 is repealed and reenacted to read:
77          34-41-103. Policy requirements.
78          (1) (a) A local governmental entity or a state institution of higher education may not
79     test a donor for the presence of drugs, unless the local government entity or state institution of
80     higher education:
81          (i) adopts a written policy or ordinance for the testing;
82          (ii) distributes the policy or ordinance to employees and volunteers; and
83          (iii) makes the policy or ordinance available for review by prospective employees and
84     prospective volunteers.
85          (b) The local governmental entity or state institution of higher education may only test
86     or retest for the presence of drugs in accordance with the policy or ordinance described in
87     Subsection (1)(a).
88          (2) The local government entity or state institution of higher education:
89          (a) shall collect and test samples in accordance with Section 34-41-104; and
90          (b) if otherwise permitted by law, is not limited only to collecting or testing in
91     circumstances where there are indications of job-related impairment of an employee or
92     volunteer.
93          (3) The use and disposition of all drug test results are subject to the limitations of Title
94     63G, Chapter 2, Government Records Access and Management Act, and the Americans with
95     Disabilities Act of 1990, 42 U.S.C. 12101 through 12213.
96          (4) A donor who is subject to testing under a policy or ordinance described in
97     Subsection (1)(a) shall submit a split urine or split oral sample for testing or retesting.
98          (5) Unless the policy or ordinance described in Subsection (1)(a) provides otherwise,
99     the local governmental entity or state institution of higher education may specify the type of
100     sample, described in Subsection (4), that the donor is required to submit.
101          (6) A split urine sample shall consist of at least 45 milliliters of urine, divided into two
102     specimen bottles with:
103          (a) at least 30 milliliters of urine in one bottle, for the initial test; and
104          (b) at least 15 milliliters of urine in the other bottle for retesting, if requested under
105     Subsection (7).
106          (7) If the test results of a urine or oral test indicate the presence of drugs, the local
107     governmental entity or state institution of higher education shall:
108          (a) give notice to the donor:
109          (i) of the test results; and
110          (ii) that the donor may, within 72 hours after the local government entity or state
111     institution of higher education provides the notice, request testing of the second sample; and
112          (b) test the second sample if the donor timely requests testing of the second sample.
113          (8) The expense of testing the second sample will be equally divided between the
114     donor and the local governmental entity or state institution of higher education.
115          (9) The test results of the samples shall be considered at any subsequent disciplinary
116     hearing if the requirements of this section and Section 34-41-104 are complied with in the
117     collection, handling, and testing of the samples.
118          Section 3. Section 34-41-104 is amended to read:
119          34-41-104. Requirements for identification, collection, and testing of samples.
120          (1) The local governmental entity or state institution of higher education shall ensure
121     that:
122          (a) all sample collection under this chapter is performed by an entity independent of the
123     local government or state institution of higher education;
124          (b) all testing for drugs under this chapter is performed by an independent laboratory
125     certified for employment drug testing by either the Substance Abuse and Mental Health
126     Services Administration or the College of American Pathology;
127          (c) the instructions, chain of custody forms, and collection kits, including [bottles]
128     containers and seals, used for sample collection are prepared by an independent laboratory
129     certified for employment drug testing by either the Substance Abuse and Mental Health
130     Services Administration or the College of American Pathology; and
131          (d) sample collection and testing for drugs under this chapter is in accordance with the
132     [conditions established in] requirements of this section.
133          (2) The local governmental entity or state institution of higher education may:
134          (a) in accordance with a policy or ordinance described in Subsection 34-41-103(1)(a),
135     require samples from [its employees, volunteers, prospective employees, or prospective
136     volunteers] a donor;
137          (b) require presentation of reliable identification to the person collecting the samples;
138     and
139          (c) in order to dependably test for the presence of drugs, designate the type of sample
140     to be used for testing.
141          (3) The local governmental entity or state institution of higher education shall ensure
142     that [its] the local governmental entity's or state institution of higher education's ordinance or
143     policy requires that:
144          (a) the collection of samples is performed under reasonable and sanitary conditions;
145          (b) samples are collected and tested:
146          (i) to ensure the privacy of the individual being tested; and
147          (ii) in a manner reasonably calculated to prevent substitutions or interference with the
148     collection or testing of reliable samples;
149          (c) sample collection is appropriately documented to ensure that:
150          (i) samples are labeled and sealed [so as] to reasonably [to] preclude the probability of
151     erroneous identification of test results; and
152          (ii) [employees, volunteers, prospective employees, or prospective volunteers have] a
153     donor has the opportunity to provide notification of any information:
154          (A) that [any person named in Subsection (3)(c)(ii)] a donor considers relevant to the
155     test, including identification of currently or recently used prescription or nonprescription drugs
156     or other relevant medical information; and
157          (B) in compliance with the Americans with Disabilities Act of 1990, 42 U.S.C. 12101
158     through 12213;
159          (d) sample collection, storage, and transportation to the place of testing are performed
160     in a manner that reasonably precludes the probability of sample misidentification,
161     contamination, or adulteration; and
162          (e) sample testing conforms to scientifically accepted analytical methods and
163     procedures.
164          (4) Before the result of any test may be used as a basis for any action by a local
165     governmental entity or state institution of higher education under Section 34-41-105, the local
166     governmental entity or state institution of higher education shall:
167          (a) verify or confirm any positive initial screening test by gas chromatography, gas
168     chromatography-mass spectroscopy, or other comparably reliable analytical methods; and
169     [shall provide that the employee, prospective employee, volunteer, or prospective volunteer be
170     notified as soon as possible by telephone or in writing at the last-known address or telephone
171     number of the result of the initial test, if it is positive, and told of his option to have the 15 ml
172     urine sample tested, at an expense equally divided between the donor and the employer. In
173     addition to the initial test results, the test results of the 15 ml urine sample shall be considered
174     at any subsequent disciplinary hearing if the requirements of this section and Section
175     34-41-104 have been complied with in the collection, handling, and testing of these samples.]
176          (b) provide the notice described in Subsection 34-41-103(7), as soon as possible after a
177     positive test result, at the last known address or telephone number of the donor.
178          (5) Any drug testing by a local governmental entity or state institution of higher
179     education shall occur during or immediately after the regular work period of the employee or
180     volunteer and shall be considered as work time for purposes of compensation and benefits.
181          (6) The local governmental entity or state institution of higher education shall pay all
182     costs of sample collection and initial testing for drugs required under [its ordinance or] the
183     policy or ordinance described in Subsection 34-41-103(1)(a), including the costs of
184     transportation if the testing of [a current] an employee or volunteer is conducted at a place
185     other than the workplace.
186          Section 4. Section 34A-2-302 is amended to read:
187          34A-2-302. Employee's willful misconduct -- Penalty.
188          (1) For purposes of this section:
189          (a) "Controlled substance" is as defined in Section 58-37-2.
190          (b) "Local government employee" is as defined in Section 34-41-101.
191          (c) "Local governmental entity" is as defined in Section 34-41-101.
192          (d) "State institution of higher education" is as defined in Section 34-41-101.
193          (e) "Valid prescription" is a prescription, as defined in Section 58-37-2, that:
194          (i) is prescribed for a controlled substance for use by the employee for whom it was
195     prescribed; and
196          (ii) has not been altered or forged.
197          (2) An employee may not:
198          (a) remove, displace, damage, destroy, or carry away any safety device or safeguard
199     provided for use in any employment or place of employment;
200          (b) interfere in any way with the use of a safety device or safeguard described in
201     Subsection (2)(a) by any other person;
202          (c) interfere with the use of any method or process adopted for the protection of any
203     employee in the employer's employment or place of employment; or
204          (d) fail or neglect to follow and obey orders and to do every other thing reasonably
205     necessary to protect the life, health, and safety of employees.
206          (3) Except in case of injury resulting in death:
207          (a) compensation provided for by this chapter shall be reduced 15% when injury is
208     caused by the willful failure of the employee:
209          (i) to use safety devices when provided by the employer; or
210          (ii) to obey any order or reasonable rule adopted by the employer for the safety of the
211     employee; and
212          (b) except when the employer permitted, encouraged, or had actual knowledge of the
213     conduct described in Subsection (4):
214          (i) disability compensation may not be awarded under this chapter or Chapter 3, Utah
215     Occupational Disease Act, to an employee when the major contributing cause of the employee's
216     injury is the employee's conduct described in Subsection (4); or
217          (ii) disability compensation to an employee under this chapter or Chapter 3, Utah
218     Occupational Disease Act, shall be reduced by 15% when the employee's conduct is a
219     contributing cause of the employee's injury but not the major contributing cause.
220          (4) The conduct described in Subsection (3)(b) is the employee's:
221          (a) knowing use of a controlled substance that the employee did not obtain under a
222     valid prescription;
223          (b) intentional abuse of a controlled substance that the employee obtained under a valid
224     prescription if the employee uses the controlled substance intentionally:
225          (i) in excess of prescribed therapeutic amounts; or
226          (ii) in an otherwise abusive manner; or
227          (c) intoxication from alcohol with a blood or breath alcohol concentration of .05 grams
228     or greater as shown by a chemical test.
229          (5) (a) For purposes of Subsections (3) and (4), as shown by a chemical test that
230     conforms to scientifically accepted analytical methods and procedures and includes verification
231     or confirmation of any positive test result by gas chromatography, gas chromatography-mass
232     spectroscopy, or other comparably reliable analytical method, before the result of the test may
233     be used as a basis for the presumption, it is presumed that the major contributing cause of the
234     employee's injury is the employee's conduct described in Subsection (4) if at the time of the
235     injury:
236          (i) the employee has in the employee's system:
237          (A) any amount of a controlled substance or its metabolites if the employee did not
238     obtain the controlled substance under a valid prescription; or
239          (B) a controlled substance the employee obtained under a valid prescription or the
240     metabolites of the controlled substance if the amount in the employee's system is consistent
241     with the employee using the controlled substance intentionally:
242          (I) in excess of prescribed therapeutic amounts; or
243          (II) in an otherwise abusive manner; or
244          (ii) the employee has a blood or breath alcohol concentration of .05 grams or greater.
245          (b) The presumption created under Subsection (5)(a) may be rebutted by a
246     preponderance of the evidence showing that:
247          (i) the chemical test creating the presumption is inaccurate because the employer failed
248     to comply with:
249          (A) Sections 34-38-4 through 34-38-6; or
250          (B) if the employer is a local governmental entity or state institution of higher
251     education, Section 34-41-104 [and], Subsection [34-41-103(5)] 34-41-103(7), or, if applicable,
252     Subsection 34-41-103(6);
253          (ii) the employee did not engage in the conduct described in Subsection (4);
254          (iii) the test results do not exclude the possibility of passive inhalation of marijuana
255     because the concentration of total urinary cannabinoids is less than 50 nanograms/ml as
256     determined by a test conducted in accordance with:
257          (A) Sections 34-38-4 through 34-38-6; or
258          (B) if the employer is a local governmental entity or state institution of higher
259     education, Section 34-41-104 [and], Subsection [34-41-103(5)] 34-41-103(7), or, if applicable,
260     Subsection 34-41-103(6);
261          (iv) a competent medical opinion from a physician verifies that the amount of
262     controlled substances, metabolites, or alcohol in the employee's system does not support a
263     finding that the conduct described in Subsection (4) was the major contributing cause of the
264     employee's injury or a contributing cause of the employee's injury; or
265          (v) (A) the conduct described in Subsection (4) was not a contributing cause of the
266     employee's injury; or
267          (B) the employee's mental and physical condition were not impaired at the time of the
268     injury.
269          (c) (i) Except as provided in Subsections (5)(c)(ii) and (iii), if a chemical test that
270     creates the presumption under Subsection (5)(a) is taken at the request of the employer, the
271     employer shall comply with:
272          (A) Title 34, Chapter 38, Drug and Alcohol Testing; or
273          (B) if the employee is a local governmental employee or an employee of a state
274     institution of higher education, Title 34, Chapter 41, Local Governmental Entity Drug-Free
275     Workplace Policies.
276          (ii) Notwithstanding Section 34-38-13, the results of a test taken under Title 34,
277     Chapter 38, Drug and Alcohol Testing, may be disclosed to the extent necessary to establish or
278     rebut the presumption created under Subsection (5)(a).
279          (iii) Notwithstanding Section 34-41-103, the results of a test taken under Title 34,
280     Chapter 41, Local Governmental Entity Drug-Free Workplace Policies, may be disclosed to the
281     extent necessary to establish or rebut the presumption created under Subsection (5)(a).
282          (6) (a) A test sample taken pursuant to this section shall be taken as a split sample.
283          (b) One part of the sample is to be used by the employer for testing pursuant to
284     Subsection (5)(a):
285          (i) at a testing facility selected by the employer; and
286          (ii) at the employer's or the employer's workers' compensation carrier's expense.
287          (c) The testing facility selected under Subsection (6)(b) shall hold the part of the
288     sample not used under Subsection (6)(b) until the sooner of:
289          (i) six months from the date of the original test; or
290          (ii) when the employee requests that the sample be tested.
291          (d) The employee has only six months from the date of the original test to have the
292     remaining sample tested:
293          (i) at the employee's expense; and
294          (ii) at the testing facility selected by the employee, except that the test shall meet the
295     requirements of Subsection (5)(a).
296          (7) If any provision of this section, or the application of any provision of this section to
297     any person or circumstance, is held invalid, the remainder of this section shall be given effect
298     without the invalid provision or application.
299          Section 5. Effective date.
300          This bill takes effect on May 1, 2024.