Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 411 (2024GS)

Sponsor

Rep. Maloy, A. Cory

Final action

Governor Signed 3/18/2024

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• defines terms;
• amends the requirements for a written policy or ordinance of certain local government entities for drug testing of employees, volunteers, potential employees, and potential volunteers;
• permits oral drug testing in addition to urine testing; and
• makes technical changes.

Every vote on this bill

Bill text

This document includes House Committee Amendments incorporated into the bill on Thu, Feb 8, 2024 at 11:24 AM by housengrossing.
LOCAL GOVERNMENTAL ENTITY DRUG-FREE WORKPLACE
POLICIES AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: A. Cory Maloy
Senate Sponsor: 
 Michael S. Kennedy
LONG TITLE
General Description:
This bill amends provisions related to local government entity drug-free workplace
policies. 
Highlighted Provisions:
This bill:
▸ defines terms;
▸ amends the requirements for a written policy or ordinance of certain local
government entities for drug testing of employees, volunteers, potential employees,
and potential volunteers;
▸ permits oral drug testing in addition to urine testing; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
34-41-101
, as last amended by Laws of Utah 2023, Chapter 16
34-41-104
, as last amended by Laws of Utah 1998, Chapter 13
34A-2-302
, as last amended by Laws of Utah 2020, Chapter 18
REPEALS AND REENACTS:
34-41-103
, as last amended by Laws of Utah 2008, Chapter 382
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
34-41-101
 is amended to read:
34-41-101.
Definitions.
As used in this chapter:
(1) "Donor" means an employee, a volunteer, a prospective employee, or a prospective
volunteer of a local government entity or a state institution of higher education.
[
(1)
] 
(2)
 "Drug" means any substance recognized as a drug in the United States
Pharmacopeia, the National Formulary, the Homeopathic Pharmacopeia, or other drug
compendia, including Title 58, Chapter 37, Utah Controlled Substances Act, or supplement to
any of those compendia.
[
(2)
] 
(3)
 "Drug testing" means the scientific analysis for the presence of drugs or their
metabolites in the human body in accordance with the definitions and terms of this chapter.
[
(3)
] 
(4)
 "Local governmental employee" means any person or officer in the service of
a local governmental entity or state institution of higher education for compensation.
[
(4)
] 
(5)
 (a) "Local governmental entity" means any political subdivision of Utah
including any county, municipality, local school district, special district, special service district,
or any administrative subdivision of those entities.
(b) "Local governmental entity" does not mean Utah state government or its
administrative subdivisions provided for in Sections 
63A-17-1001
 through 
63A-17-1006
.
[
(5)
] 
(6)
 "Periodic testing" means preselected and preannounced drug testing of
employees or volunteers conducted on a regular schedule.
[
(6)
] 
(7)
 "Prospective employee" means any person who has made a written or oral
application to become an employee of a local governmental entity or a state institution of
higher education.
[
(7)
] 
(8)
 "Random testing" means the unannounced drug testing of an employee or
volunteer who was selected for testing by using a method uninfluenced by any personal
characteristics other than job category.
[
(8)
] 
(9)
 "Reasonable suspicion for drug testing" means an articulated belief based on
the recorded specific facts and reasonable inferences drawn from those facts that a local
government employee or volunteer is in violation of the drug-free workplace policy.
[
(9)
] 
(10)
 "Rehabilitation testing" means unannounced but preselected drug testing
done as part of a program of counseling, education, and treatment of an employee or volunteer
in conjunction with the drug-free workplace policy.
[
(10)
] 
(11)
 "Safety sensitive position" means any local governmental or state institution
of higher education position involving duties which directly affects the safety of governmental
employees, the general public, or positions where there is access to controlled substances, as
defined in Title 58, Chapter 37, Utah Controlled Substances Act, during the course of
performing job duties.
[
(11)
] 
(12)
 "Sample" means urine, blood, breath, saliva, or hair.
[
(12)
] 
(13)
 "State institution of higher education" means the institution as defined in
Section 
53B-3-102
.
[
(13)
] 
(14)
 "Volunteer" means any person who donates services as authorized by the
local governmental entity or state institution of higher education without pay or other
compensation except expenses actually and reasonably incurred.
Section 2. Section 
34-41-103
 is repealed and reenacted to read:
 34-41-103.
Policy requirements.
(1) (a) A local governmental entity or a state institution of higher education may not
test a donor for the presence of drugs, unless the local government entity or state institution of
higher education:
(i) adopts a written policy or ordinance for the testing;
(ii) distributes the policy or ordinance to employees and volunteers; and
(iii) makes the policy or ordinance available for review by prospective employees and
prospective volunteers.
(b) The local governmental entity or state institution of higher education may only test
or retest for the presence of drugs in accordance with the policy or ordinance described in
Subsection (1)(a).
(2) The local government entity or state institution of higher education:
(a) shall collect and test samples in accordance with Section 
34-41-104
; and
(b) if otherwise permitted by law, is not limited only to collecting or testing in
circumstances where there are indications of job-related impairment of an employee or
volunteer.
(3) The use and disposition of all drug test results are subject to the limitations of Title
63G, Chapter 2, Government Records Access and Management Act, and the Americans with
Disabilities Act of 1990, 42 U.S.C. 12101 through 12213.
(4) A donor who is subject to testing under a policy or ordinance described in
Subsection (1)(a) shall
Ĥ→ [
submit a split urine or split oral sample for testing or retesting.
] 
 :
97a 
(a) submit an oral sample for testing; or
97b 
(b) submit a split urine sample for testing or retesting.
 ←Ĥ
(5) Unless the policy or ordinance described in Subsection (1)(a) provides otherwise,
the local governmental entity or state institution of higher education may specify the type of
sample, described in Subsection (4), that the donor is required to submit.
(6) A split urine sample shall consist of at least 45 milliliters of urine, divided into two
specimen bottles with:
(a) at least 30 milliliters of urine in one bottle, for the initial test; and
(b) at least 15 milliliters of urine in the other bottle for retesting, if requested under
Subsection (7).
(7) If the test results of a urine or oral test indicate the presence of drugs, the local
governmental entity or state institution of higher education shall:
(a) give notice to the donor:
(i) of the test results; and
(ii)
Ĥ→ 
for a urine test,
 ←Ĥ
that the donor may, within 72 hours after the local
110a 
government entity or state
institution of higher education provides the notice, request testing of the second sample; and
(b) test the second sample if the donor timely requests testing of the second sample.
(8) The expense of testing the second
Ĥ→ 
urine
 ←Ĥ
sample will be equally divided
113a 
between the
donor and the local governmental entity or state institution of higher education.
(9) The test results of the samples shall be considered at any subsequent disciplinary
hearing if the requirements of this section and Section 
34-41-104
 are complied with in the
collection, handling, and testing of the samples.
Section 3. Section 
34-41-104
 is amended to read:
34-41-104.
Requirements for identification, collection, and testing of samples.
(1) The local governmental entity or state institution of higher education shall ensure
that:
(a) all sample collection under this chapter is performed by an entity independent of the
local government or state institution of higher education;
(b) all testing for drugs under this chapter is performed by an independent laboratory
certified for employment drug testing by either the Substance Abuse and Mental Health
Services Administration or the College of American Pathology;
(c) the instructions, chain of custody forms, and collection kits, including [
bottles
]
containers
 and seals, used for sample collection are prepared by an independent laboratory
certified for employment drug testing by either the Substance Abuse and Mental Health
Services Administration or the College of American Pathology; and
(d) sample collection and testing for drugs under this chapter is in accordance with the
[
conditions established in
] 
requirements of
 this section.
(2) The local governmental entity or state institution of higher education may:
(a) 
in accordance with a policy or ordinance described in Subsection 
34-41-103
(1)(a),
require samples from [
its employees, volunteers, prospective employees, or prospective
volunteers
] 
a donor
;
(b) require presentation of reliable identification to the person collecting the samples;
and
(c) in order to dependably test for the presence of drugs, designate the type of sample
to be used for testing.
(3) The local governmental entity or state institution of higher education shall ensure
that [
its
] 
the local governmental entity's or state institution of higher education's
 ordinance or
policy requires that:
(a) the collection of samples is performed under reasonable and sanitary conditions;
(b) samples are collected and tested:
(i) to ensure the privacy of the individual being tested; and
(ii) in a manner reasonably calculated to prevent substitutions or interference with the
collection or testing of reliable samples;
(c) sample collection is appropriately documented to ensure that:
(i) samples are labeled and sealed [
so as
] 
to
 reasonably [
to
] preclude the probability of
erroneous identification of test results; and
(ii) [
employees, volunteers, prospective employees, or prospective volunteers have
] 
a
donor has
 the opportunity to provide notification of any information:
(A) that [
any person named in Subsection (3)(c)(ii)
] 
a donor
 considers relevant to the
test, including identification of currently or recently used prescription or nonprescription drugs
or other relevant medical information; and
(B) in compliance with the Americans with Disabilities Act of 1990, 42 U.S.C. 12101
through 12213;
(d) sample collection, storage, and transportation to the place of testing are performed
in a manner that reasonably precludes the probability of sample misidentification,
contamination, or adulteration; and
(e) sample testing conforms to scientifically accepted analytical methods and
procedures.
(4) Before the result of any test may be used as a basis for any action by a local
governmental entity or state institution of higher education under Section 
34-41-105
, the local
governmental entity or state institution of higher education shall
:
(a)
 verify or confirm any positive initial screening test by gas chromatography, gas
chromatography-mass spectroscopy, or other comparably reliable analytical methods
;
 and
[
shall provide that the employee, prospective employee, volunteer, or prospective volunteer be
notified as soon as possible by telephone or in writing at the last-known address or telephone
number of the result of the initial test, if it is positive, and told of his option to have the 15 ml
urine sample tested, at an expense equally divided between the donor and the employer. In
addition to the initial test results, the test results of the 15 ml urine sample shall be considered
at any subsequent disciplinary hearing if the requirements of this section and Section
34-41-104
 have been complied with in the collection, handling, and testing of these samples.
]
(b) provide the notice described in Subsection 
34-41-103
(7), as soon as possible after a
positive test result, at the last known address or telephone number of the donor.
(5) Any drug testing by a local governmental entity or state institution of higher
education shall occur during or immediately after the regular work period of the employee or
volunteer and shall be considered as work time for purposes of compensation and benefits.
(6) The local governmental entity or state institution of higher education shall pay all
costs of sample collection and 
initial
 testing for drugs required under [
its ordinance or
] 
the
policy 
or ordinance described in Subsection 
34-41-103
(1)(a)
, including the costs of
transportation if the testing of [
a current
] 
an
 employee or volunteer is conducted at a place
other than the workplace.
Section 4. Section 
34A-2-302
 is amended to read:
34A-2-302.
Employee's willful misconduct -- Penalty.
(1) For purposes of this section:
(a) "Controlled substance" is as defined in Section 
58-37-2
.
(b) "Local government employee" is as defined in Section 
34-41-101
.
(c) "Local governmental entity" is as defined in Section 
34-41-101
.
(d) "State institution of higher education" is as defined in Section 
34-41-101
.
(e) "Valid prescription" is a prescription, as defined in Section 
58-37-2
, that:
(i) is prescribed for a controlled substance for use by the employee for whom it was
prescribed; and
(ii) has not been altered or forged.
(2) An employee may not:
(a) remove, displace, damage, destroy, or carry away any safety device or safeguard
provided for use in any employment or place of employment;
(b) interfere in any way with the use of a safety device or safeguard described in
Subsection (2)(a) by any other person;
(c) interfere with the use of any method or process adopted for the protection of any
employee in the employer's employment or place of employment; or
(d) fail or neglect to follow and obey orders and to do every other thing reasonably
necessary to protect the life, health, and safety of employees.
(3) Except in case of injury resulting in death:
(a) compensation provided for by this chapter shall be reduced 15% when injury is
caused by the willful failure of the employee:
(i) to use safety devices when provided by the employer; or
(ii) to obey any order or reasonable rule adopted by the employer for the safety of the
employee; and
(b) except when the employer permitted, encouraged, or had actual knowledge of the
conduct described in Subsection (4):
(i) disability compensation may not be awarded under this chapter or Chapter 3, Utah
Occupational Disease Act, to an employee when the major contributing cause of the employee's
injury is the employee's conduct described in Subsection (4); or
(ii) disability compensation to an employee under this chapter or Chapter 3, Utah
Occupational Disease Act, shall be reduced by 15% when the employee's conduct is a
contributing cause of the employee's injury but not the major contributing cause.
(4) The conduct described in Subsection (3)(b) is the employee's:
(a) knowing use of a controlled substance that the employee did not obtain under a
valid prescription;
(b) intentional abuse of a controlled substance that the employee obtained under a valid
prescription if the employee uses the controlled substance intentionally:
(i) in excess of prescribed therapeutic amounts; or
(ii) in an otherwise abusive manner; or
(c) intoxication from alcohol with a blood or breath alcohol concentration of .05 grams
or greater as shown by a chemical test.
(5) (a) For purposes of Subsections (3) and (4), as shown by a chemical test that
conforms to scientifically accepted analytical methods and procedures and includes verification
or confirmation of any positive test result by gas chromatography, gas chromatography-mass
spectroscopy, or other comparably reliable analytical method, before the result of the test may
be used as a basis for the presumption, it is presumed that the major contributing cause of the
employee's injury is the employee's conduct described in Subsection (4) if at the time of the
injury:
(i) the employee has in the employee's system:
(A) any amount of a controlled substance or its metabolites if the employee did not
obtain the controlled substance under a valid prescription; or
(B) a controlled substance the employee obtained under a valid prescription or the
metabolites of the controlled substance if the amount in the employee's system is consistent
with the employee using the controlled substance intentionally:
(I) in excess of prescribed therapeutic amounts; or
(II) in an otherwise abusive manner; or
(ii) the employee has a blood or breath alcohol concentration of .05 grams or greater.
(b) The presumption created under Subsection (5)(a) may be rebutted by a
preponderance of the evidence showing that:
(i) the chemical test creating the presumption is inaccurate because the employer failed
to comply with:
(A) Sections 
34-38-4
 through 
34-38-6
; or
(B) if the employer is a local governmental entity or state institution of higher
education, Section 
34-41-104
 [
and
]
,
 Subsection [
34-41-103
(5)
] 
34-41-103
(7), or, if applicable,
Subsection 
34-41-103
(6)
;
(ii) the employee did not engage in the conduct described in Subsection (4);
(iii) the test results do not exclude the possibility of passive inhalation of marijuana
because the concentration of total urinary cannabinoids is less than 50 nanograms/ml as
determined by a test conducted in accordance with:
(A) Sections 
34-38-4
 through 
34-38-6
; or
(B) if the employer is a local governmental entity or state institution of higher
education, Section 
34-41-104
 [
and
]
,
 Subsection [
34-41-103
(5)
] 
34-41-103
(7), or, if applicable,
Subsection 
34-41-103
(6)
;
(iv) a competent medical opinion from a physician verifies that the amount of
controlled substances, metabolites, or alcohol in the employee's system does not support a
finding that the conduct described in Subsection (4) was the major contributing cause of the
employee's injury or a contributing cause of the employee's injury; or
(v) (A) the conduct described in Subsection (4) was not a contributing cause of the
employee's injury; or
(B) the employee's mental and physical condition were not impaired at the time of the
injury.
(c) (i) Except as provided in Subsections (5)(c)(ii) and (iii), if a chemical test that
creates the presumption under Subsection (5)(a) is taken at the request of the employer, the
employer shall comply with:
(A) Title 34, Chapter 38, Drug and Alcohol Testing; or
(B) if the employee is a local governmental employee or an employee of a state
institution of higher education, Title 34, Chapter 41, Local Governmental Entity Drug-Free
Workplace Policies.
(ii) Notwithstanding Section 
34-38-13
, the results of a test taken under Title 34,
Chapter 38, Drug and Alcohol Testing, may be disclosed to the extent necessary to establish or
rebut the presumption created under Subsection (5)(a).
(iii) Notwithstanding Section 
34-41-103
, the results of a test taken under Title 34,
Chapter 41, Local Governmental Entity Drug-Free Workplace Policies, may be disclosed to the
extent necessary to establish or rebut the presumption created under Subsection (5)(a).
(6) (a) A test sample taken pursuant to this section shall be taken as a split sample.
(b) One part of the sample is to be used by the employer for testing pursuant to
Subsection (5)(a):
(i) at a testing facility selected by the employer; and
(ii) at the employer's or the employer's workers' compensation carrier's expense.
(c) The testing facility selected under Subsection (6)(b) shall hold the part of the
sample not used under Subsection (6)(b) until the sooner of:
(i) six months from the date of the original test; or
(ii) when the employee requests that the sample be tested.
(d) The employee has only six months from the date of the original test to have the
remaining sample tested:
(i) at the employee's expense; and
(ii) at the testing facility selected by the employee, except that the test shall meet the
requirements of Subsection (5)(a).
(7) If any provision of this section, or the application of any provision of this section to
any person or circumstance, is held invalid, the remainder of this section shall be given effect
without the invalid provision or application.
Section 5. 
Effective date.
This bill takes effect on May 1, 2024.