Drug Testing Law Summaries

Drug Testing Law Summaries

Utah, Drug Testing Law Summaries

Utah's general drug testing law is located in the Utah Code Annotated at Title 34, Chapter 38. Utah's state employment law also contains some drug testing provisions under Title 67, Chapter 19, Section 67-19-36.

Utah also has a “drug-free workplace” law at Title 34, Chapter 41. This law applies to local government entities, including school districts, and their employees.

DEFINITIONS

“Alcohol” means ethyl alcohol or ethanol with respect to Utah's general drug testing law (Sec. 34-38-2(1)).

“Drug” means any substance recognized as a drug in the United States Pharmacopoeia, the National Formulary, the Homeopathic Pharmacopoeia, or other drug compendia, or supplement to any of those compendia (Secs. 34-38-2(2) and 34-41-101(1)).

“Employee” means any person in the service of an employer for compensation with respect to Utah's general drug testing law (Sec. 34-38-2(4)).

“Employer” means any person, firm, or corporation, including any public utility or transit district, that has one or more workers or operators employed in the same business, or in or about the same establishment, under any contract of hire, express or implied, oral or written. Employer does not include the federal or state government, or other local political subdivisions (Sec. 34-38-2(3)).

“Drug testing” for purposes of Utah's drug-free workplace law means the scientific analysis for the presence of drugs or their metabolites in the human body (Sec. 34-41-101(2)).

“Prospective employee” means any person who has made application to an employer, whether written or oral, to become an employee of the employer. Under the state's drug-free workplace law, this means any person who has made a written or oral application to be an employee of a local government entity or state institution of higher learning (Secs. 34-38-2(5) and 34-41-101(6)).

“Safety sensitive position,” with respect to Utah's drug-free workplace law, means any local governmental or state institution of higher education position involving duties that directly affect the safety of governmental employees, the general public, or positions where there is access to controlled substances during the course of performing job duties (Sec. 34-41-101(10)).

“Sample” means urine, blood, breath, saliva, or hair (Secs. 34-38-2(6) and 34-41-101(11)).

“Reasonable suspicion for drug testing,” with respect to Utah's drug-free workplace law 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 (Sec. 34-41-101(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 (Sec. 34-41-101(7)).

“Periodic testing” means preselected and preannounced drug testing of employees or volunteers conducted on a regular schedule (Sec. 34-41-101(5)).

With respect to Utah's drug-free workplace law, “local governmental employee” means any person or officer in the service of a local governmental entity or state institution of higher education for compensation (Sec. 34-41-101(3)).

“Local governmental entity” means, with respect to Utah's drug-free workplace law, any political subdivision of Utah, including any county, municipality, local school district, local district, special service district, or any administrative subdivision of those entities. Local governmental entity does not mean Utah state government or its administrative subdivisions provided for in Secs. 67-19-33-67-19-38 (Sec. 34-41-101(4), as amended by Ch. 329 (H. 65), L. 2007).

“Volunteer,” with respect to Utah's drug-free workplace law, 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 (Sec. 34-41-101(13)).

COVERAGE

Private employers, public utilities and transit districts are covered by Utah's general drug testing law. State government and local subdivisions are not covered by this law (Secs. 34-38-1-34-38-15).

State officers and employees are covered by the drug testing provisions of the state employment law (Title 67, Ch. 19). Local government entities are covered by Utah's “drug-free workplace ” law (Secs. 34-41-101-34-41-107).

PROCEDURES

Interaction with other laws.- Under Utah's drug-free workplace law, the use and disposition of all drug test results are subject to the limitations of Utah's Government Records Access and Management Act (Title 63G, Chapter 2) and the federal Americans with Disabilities Act of 1990 (Sec. 34-41-103(3), as amended by Ch. 382 (H. 63), L. 2008, effective May 5, 2008).

WHAT THE EMPLOYER MUST DO

It is not unlawful for an employer to test employees or prospective employees for the presence of drugs or alcohol, in accordance with Utah's general drug testing law, as a condition of hiring or continued employment. However, employers and management in general must also submit to testing on a periodic basis (Sec. 34-38-3).

Drug-free workplace programs

Under the drug-free workplace law, local governmental entities and state institutions of higher education must adopt a written policy or ordinance and distribute this policy or ordinance to employees and volunteers before testing or retesting for any presence of drugs. Such policy or ordinance must be made available for review by prospective employees and prospective volunteers. The local governmental entity or state institution must follow the procedures and requirements of that ordinance when testing or retesting for the presence of drugs (Sec. 34-41-103(1)(a) and (b), as amended by Ch. 382 (H. 63), L. 2008, effective May 5, 2008).

Authorized testing.- Employees, volunteers, prospective employees, and prospective volunteers may be tested for the presence of drugs or their metabolites as a condition of hiring, continued employment, and voluntary services. A drug-free workplace policy may include, but does not require, drug testing under the following circumstances (Sec. 34-41-102(2) and (3)):

1. preemployment hiring or volunteer selection procedures;

2. postaccident investigations;

3. reasonable suspicion situations;

4. preannounced periodic testing;

5. rehabilitation programs;

6. random testing in safety sensitive positions; or

7. to comply with the federal Drug Free Workplace Act of 1988 (see EMPLOYMENT RELATIONS ¶5699B ) or other federally required drug policies.

Utah's drug testing law cannot be construed to prohibit local governmental entities or state institutions of higher education from establishing policies regarding other hazardous or intoxicating substances (Sec. 34-41-102(4)).

When to test.- Any drug testing by a local governmental entity or state institution of higher education must occur during or immediately after the regular work period of the employee or volunteer and must be considered as work time for purposes of compensation and benefits (Sec. 34-41-104(5), as amended by Ch. 10 (H. 228), L. 1997).

Split sample testing.- Urine samples taken from employees, prospective employees, volunteers or prospective volunteers for purposes of drug testing must be split into two samples, with one bottle containing at least 30 ml of urine and the other containing at least 15 ml. If the first sample of 30 ml of urine tests positive for drugs, the donor has 72 hours from the time the donor is so notified to request that the second portion with the 15 ml of urine sample be tested for the indicated drugs. The expense of the second test will be divided equally between the donor and the employer. The sample test results are to be considered at any subsequent disciplinary hearing, provided other requirements have been complied with in the collection, handling, and testing of these samples (Sec. 34-41-103, as amended by Ch. 382 (H. 63), L. 2008, effective May 5, 2008).

Test results.- 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, the entity or institution must verify or confirm any positive initial screening test by gas chromatography, gas chromatography-mass spectroscopy, or other comparably reliable analytical methods and must 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 the person's option to have the remainder of the split urine sample tested (Sec. 34-41-104(4), as amended by Ch. 10 (H. 228), L. 1997).

Where there is a verified or confirmed positive drug test, or where an employee, prospective employee, volunteer, or prospective volunteer refuses to provide a sample, in violation of the employer's written policy, the employer may (Sec. 34-41-105(1) and (2)):

1. require the employee to enroll in a rehabilitation, treatment, or counseling and educational program, approved by the local governmental entity or state institution of higher education as a condition of continued employment or volunteer service;

2. suspend the employee with or without pay for a period of time;

3. terminate the employment or voluntary services;

4. refuse to hire a prospective employee or use the services of a volunteer; and

5. impose disciplinary measures in conformance with the usual procedures, including employment contracts of the local governmental entity or state institution of higher education.

Costs.- The local governmental entity or state institution of higher education must generally pay all costs of sample collection and testing for drugs required under its ordinance or policy, including the costs of transportation if the testing of a current employee or volunteer is conducted at a place other than the workplace. The expense of testing the second portion of a split sample, however, will be divided equally between the donor and the employer (Sec. 34-41-103, as amended by S. 164, L. 1996; and Sec. 34-41-104, as amended by Ch. 10 (H. 228), L. 1997).

Disability.- An employee, volunteer, prospective employee or prospective volunteer whose drug test results are verified or confirmed as positive cannot, by virtue of those results alone, be defined as having a disability for purposes of the Utah Antidiscrimination Act (see ¶46-2500 ) or the Americans with Disabilities Act of 1990 (Sec. 34-41-106, as amended by S. 166, L. 1997, effective July 1, 1997).

When to test

Testing under Utah's general drug testing law must occur during or immediately after the regular work period of current employees and must be deemed work time for purposes of compensation and benefits for current employees (Sec. 34-38-5(1)).

Within the terms of a written policy, an employer may require the collection and testing of samples for the following purposes (Sec. 34-38-7(2)):

1. investigation of possible individual employee impairment;

2. investigation of accidents in the workplace or incidents of workplace theft;

3. maintenance safety for employees or the general public;

4. maintenance of productivity, quality of products or services, or security of property or information.

Refusal to submit to test

Drivers.- Federal safety regulations for motor carriers are incorporated by reference, with certain exceptions; Federal requirements under 49 CFR Parts 350 through 399 and Part 40 (Parts 40 and 382, specifically), as contained in the October 1, 2007, Code of Federal Regulations, are incorporated by reference, except for Parts 391.11(b)(1) and 391.49. These requirements apply to all motor carrier(s) as defined in 49 CFR Part 390.5, excluding commercial motor vehicles that are designed or used to transport more than 8 and less than 15 passengers (including the driver) for compensation and UCA 72-9-102(2) engaged in commerce (Utah AdminR R909-1-1, amended February 15, 2008).

Action upon test results

Positive test results; refusal to test.- Pursuant to Utah's general drug testing law, upon receipt of a verified or confirmed positive drug or alcohol test result that indicates a violation of the employer's written policy, or upon the refusal of an employee or prospective employee to provide a sample, an employer may use that test result or refusal as the basis for disciplinary or rehabilitative actions, which may include (Sec. 34-38-8):

1. a requirement that the employee enroll in an employer-approved rehabilitation, treatment, or counseling program, which may include additional drug or alcohol testing, as a condition of continued employment;

2. suspension of the employee with or without pay for a period of time;

3. termination of employment;

4. refusal to hire a prospective employee;

5. other disciplinary measures in conformance with the employer's usual procedures, including any collective bargaining agreement.

Costs

Under Utah's general drug testing law, employers must pay all costs of testing for drugs or alcohol required by the employer, including the cost of transportation if the testing of a current employee is conducted at a place other than the workplace (Sec. 34-38-5(2)).

Employer rights and protections

Failure to test/ending program.- No cause of action arises in favor of any person against an employer who has established a policy and initiated a testing program in accordance with Utah's general drug testing law, for any of the following (Sec. 34-38-9):

1. failure to test for drugs or alcohol, or failure to test for a specific drug or other substance;

2. failure to test for, or if tested for, failure to detect, any specific drug or other substance, disease, infectious agent, virus, or other physical abnormality, problem, or defect of any kind;

3. termination or suspension of any drug or alcohol testing program or policy.

Action based on test results.- No cause of action arises in favor of any person against an employer who has established a program of drug or alcohol testing in accordance with Utah's general drug testing law and who has taken any action under Sec. 34-38-8, unless the employer's action was based on a false test result (Sec. 34-38-10(1)).

Test result in question.- In any claim where it is alleged that an employer's action was based on a false test result there is a rebuttable presumption that the test result was valid if the employer complied with the provisions of Sec. 34-38-6. Further, the employer is not liable for monetary damages if the reliance on the false test result was reasonable and in good faith (Sec. 34-38-10(2)).

Handicap.- An employee or prospective employee whose drug or alcohol test results are verified or confirmed as positive in accordance with the provisions of Utah's drug testing law cannot, based on those results alone, be defined as a person with a disability for purposes of the Utah Antidiscrimination Act (see ¶46-2500 ) (Sec. 34-38-14, as amended by H. 79, L. 2001).

Libel.- No cause of action for defamation of character, libel, slander, or damage to reputation arises in favor of any person against an employer who has established a program of drug or alcohol testing in accordance with Utah's general drug testing law, unless (Sec. 34-38-11):

1. The results of that test were disclosed to any person other than the employer, an authorized employee or agent of the employer, the tested employee, or the tested prospective employee.

2. The information disclosed was based on a false test result.

3. The false test result was disclosed with malice.

4. All elements of an action for defamation of character, libel, slander, or damage to reputation as established by statute or common law, are satisfied.

Failure to establish program or policy.- No cause of action arises in favor of any person based upon the failure of an employer to establish a program or policy of drug or alcohol testing (Sec. 34-38-12).

Privacy

For purposes of this section, “test-related information” means the following received by the employer through the employer's drug or alcohol testing program: information; interviews; reports; statements; memoranda; or test results. Except as provided in Sec. 34-38-13(3) and (6), test-related information is a confidential communication and may not be (1) used or received in evidence; (2) obtained in discovery; or (3) disclosed in any public or private proceeding. Drug testing information is the property of the employer (Sec. 34-38-13(1) and (2), as amended by Ch. 152 (S. 125), L. 2004).

Test-related information (Sec. 34-38-13(3), as amended by Ch. 152 (S. 125), L. 2004):

1. shall be disclosed to the Division of Occupational and Professional Licensing in the manner provided in and only to the extent required under Sec. 58-13-5(3); and

2. may only be used in a proceeding related to (a) an action taken by the Division of Occupational and Professional Licensing under Sec. 58-1-401 when the Division of Occupational and Professional Licensing is taking action in whole or in part on the basis of test-related information disclosed under item (1) just above; (b) an action taken by an employer under Sec. 34-38-8; or (c) an action under Sec. 34-38-11.

Test-related information shall be the property of the employer (Sec. 34-38-13(4), as amended by S. 125, L. 2004).

An employer is entitled to use a drug or alcohol test result as a basis for action under Sec. 34-38-8 (Sec. 34-38-13(5), as amended by S. 125, L. 2004).

An employer may not be examined as a witness with regard to test-related information, except (Sec. 34-38-13(6), as amended by S. 125, L. 2004):

1. in a proceeding related to an action taken by the employer under Sec. 34-38-8;

2. in an action under Sec. 34-38-11; or

3. in an action described in Sec. 34-38-13(3)(b)(i).

State employment

When there is reasonable suspicion that a state officer or employee is using a controlled substance or alcohol unlawfully during work hours, an employee may be required to submit to medically accepted testing procedures for a determination of whether the employee is so using a controlled substance or alcohol (Title 67, Ch. 19, Sec. 67-19-36).

In highly sensitive positions, random drug testing of state employees may be conducted by an agency (Title 67, Ch. 19, Sec. 67-19-36).

All drug or alcohol testing of state employees must be (Title 67, Ch. 19, Sec. 67-19-36):

1. conducted by a federally certified and licensed physician, a federally certified and licensed medical clinic, or testing facility federally certified and licensed to conduct medically accepted drug testing;

2. conducted in accordance with the rules of the Executive Director of the Department of Human Resource Management; and

3. kept confidential in accordance with the rules of the Executive Director of the Department of Human Resource Management.

POLICIES

Under Utah's general drug testing law, testing or retesting for the presence of drugs or alcohol by an employer must be carried out within the terms of a written policy that has been distributed to employees and is available for review by prospective employees (Sec. 34-38-7(1)).

Drug-free workplace programs

Before testing or retesting for the presence of drugs, a local governmental entity or state institution of higher education must (i) adopt a written policy or ordinance; (ii) distribute it to employees and volunteers; and (iii) make it available for review by prospective employees and prospective volunteers (Sec. 34-41-103(1)(a), as amended by Ch. 382 (H. 63), L. 2008, effective May 5, 2008).

TESTING

Employers under both Utah's general drug testing law and Utah's drug-free workplace law may require samples from employees and prospective employees, and may require presentation of reliable identification to the person collecting the samples. Local governmental entities may also require samples from volunteers and prospective volunteers. Employers may designate the type of sample to be used for testing (Sec. 34-38-4, as amended by S. 164, L. 1996; and Sec. 34-41-104(2), as amended by Ch. 10 (H. 228), L. 1997).

Collection of specimen

Sample collection and testing for drugs and alcohol under Utah's general drug testing law and its drug-free workplace law must be performed in accordance with the following conditions (Sec. 34-38-6, as amended by S. 164, L. 1996; and Sec. 34-41-104(3), as amended by Ch. 10 (H. 228), L. 1997):

1. collection of samples must be performed under reasonable and sanitary conditions;

2. samples must be collected and tested with regard to the privacy of the individual being tested, and in a manner reasonably calculated to prevent substitutions or interference with the collection or testing of reliable samples;

3. sample collection must be documented, and the documentation procedures must include (a) labeling of samples so as reasonably to preclude the probability of erroneous identification of test results; and (b) an opportunity for the person tested to provide notification of any information that person considers relevant to the test, including identification of currently or recently used prescription or nonprescription drugs, or other relevant medical information;

4. sample collection, storage, and transportation to the place of testing must be performed so as reasonably to preclude the probability of sample misidentification, contamination or adulteration;

5. sample testing must conform to scientifically accepted analytical methods and procedures.

Who may collect sample.- Under Utah's drug-free workplace law, a local governmental entity or state institution of higher education must ensure that all sample collection is performed by an entity independent of the local government or state institution of higher learning (Sec. 34-41-104(1), as amended by Ch. 10 (H. 228), L. 1997).

Laboratory standards

Drug-free workplace programs.- A local governmental entity or state institution must ensure that (Sec. 34-41-104(1), as amended by Ch. 10 (H. 228), L. 1997):

1. all testing for drugs under the state's drug-free workplace law 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;

2. the instructions, chain of custody forms, and collection kits 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.

Confirmation tests

Testing under both the general drug testing law and the drug-free workplace law must include 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 any test may be used as a basis for any action by an employer (Sec. 34-38-6, as amended by S. 164, L. 1996; and Sec. 34-41-104(4), as amended by Ch. 10 (H. 228), L. 1997).

ENFORCEMENT

Civil action

Under Utah's general drug testing law, employees may seek damages or job reinstatement if action was taken by the employer based on a false drug or alcohol test result (Sec. 34-38-1).

RECORDKEEPING

Access to records.- Under Utah's drug-free workplace law, the use and disposition of all drug test results are subject to the limitations of Utah's Government Records Access and Management Act (Title 63G, Chapter 2) and the federal Americans with Disabilities Act of 1990, 42 U.S.C. 12101 through 12213 (Sec. 34-41-103(3), as amended by Ch. 382 (H. 63), L. 2008, effective May 5, 2008).

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Utah, Drug Testing Law Summaries

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