State Law > Utah > Utah Drug Testing Law

Utah Drug Testing Law

 

The general law regarding drug testing for the state of Utah is found in Title 34, Chapter 38 of the Utah Code Annotated. The state also has a Drug-free Workplace law stated in Title 34, Chapter 41 and a State Employment Law in Title 67, Chapter 19 of the Utah Code Annotated.


Drug Testing Law

  • 34-38-1.Legislative findings -- Purpose and intent of chapter
  • 34-38-2.Definitions.
  • 34-38-3.Testing for drugs or alcohol.
  • 34-38-5.Time of testing -- Cost of testing and transportation.
  • 34-38-7.Employer's written testing policy -- Purposes and requirements for collection and testing -- Employer's use of test results.
  • 34-38-8.Employer's disciplinary or rehabilitative actions.
  • 34-38-9.No cause of action for failure to test or detect substance or problem, or for termination of testing program.
  • 34-38-10.No cause of action arises against employer unless false test result -- Presumption and limitation of damages in claim against employer.
  • 34-38-11.Bases for cause of action for defamation, libel, slander, or damage to reputation.
  • 34-38-12.No cause of action for failure of employer to establish testing program.
  • 34-38-13.Confidentiality of information.
  • 34-38-15.No physician-patient relationship created.
Drug Testing - Local Entities
  • 34-41-101.Definitions.
  • 34-41-102.Governmental drug-free workplace policies.
  • 34-41-103.Policy requirements.
  • 34-41-104.Requirements for identification, collection, and testing of samples.
  • 34-41-105.Rehabilitative and disciplinary actions.
  • 34-41-106.Employee not disabled.
  • 34-41-107.No physician-patient relationship created.
State Employees
  • 67-19-36. Drug testing of state employees.

34-38-1. Legislative findings -- Purpose and intent of chapter.

The Legislature finds that a healthy and productive work force, safe working conditions free from the effects of drugs and alcohol, and maintenance of the quality of products produced and services rendered in this state, are important to employers, employees, and the general public. The Legislature further finds that the abuse of drugs and alcohol creates a variety of workplace problems, including increased injuries on the job, increased absenteeism, increased financial burden on health and benefit programs, increased workplace theft, decreased employee morale, decreased productivity, and a decline in the quality of products and services.

Therefore, in balancing the interests of employers, employees, and the welfare of the general public, the Legislature finds that fair and equitable testing for drugs and alcohol in the workplace, in accordance with this chapter, is in the best interest of all parties.

The Legislature does not intend to prohibit any employee from seeking damages or job reinstatement, if action was taken by his employer based on a false drug or alcohol test result.
Enacted by Chapter 234, 1987 General Session

34-38-2. Definitions.

For purposes of this chapter:

(1) "Alcohol" means ethyl alcohol or ethanol.

(2) "Drugs" 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.

(3) "Employer" means any person, firm, or corporation, including any public utility or transit district, which 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.

(4) "Employee" means any person in the service of an employer, as defined by Subsection (3), for compensation.

(5) "Prospective employee" means any person who has made application to an employer, whether written or oral, to become his employee.

(6) "Sample" means urine, blood, breath, saliva, or hair.

Enacted by Chapter 234, 1987 General Session


34-38-3. Testing for drugs or alcohol.

(1) It is not unlawful for an employer to test employees or prospective employees for the presence of drugs or alcohol, in accordance with the provisions of this chapter, as a condition of hiring or continued employment. However, employers and management in general shall submit to the testing themselves on a periodic basis.

(2)

(a) Any organization which is operating a storage facility or transfer facility or which is engaged in the transportation of high-level nuclear waste or greater than class C radioactive waste within the exterior boundaries of the state shall establish a mandatory drug testing program regarding drugs and alcohol for prospective and existing employees as a condition of hiring any employee or the continued employment of any employee. As a part of the program, employers and management in general shall submit to the testing themselves on a periodic basis. The program shall implement testing standards and procedures established under Subsection (2)(b).

(b) The executive director of the Department of Environmental Quality, in consultation with the Labor Commission under Section 34A-1-103, shall by rule establish standards for timing of testing and dosage for impairment for the drug and alcohol testing program under this Subsection (2). The standards shall address the protection of the safety, health, and welfare of the public.

Amended by Chapter 107, 2001 General Session


34-38-5. Time of testing -- Cost of testing and transportation.

(1) Any drug or alcohol testing by an employer shall occur during or immediately after the regular work period of current employees and shall be deemed work time for purposes of compensation and benefits for current employees.

(2) An employer shall 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.

Enacted by Chapter 234, 1987 General Session

34-38-7. Employer's written testing policy -- Purposes and requirements for collection and testing -- Employer's use of test results.

(1) Testing or retesting for the presence of drugs or alcohol by an employer shall be carried out within the terms of a written policy which has been distributed to employees and is available for review by prospective employees.

(2) Within the terms of his written policy, an employer may require the collection and testing of samples for the following purposes:

(a) investigation of possible individual employee impairment;

(b) investigation of accidents in the workplace or incidents of workplace theft;

(c) maintenance of safety for employees or the general public; or

(d) maintenance of productivity, quality of products or services, or security of property or information.

(3) The collection and testing of samples shall be conducted in accordance with Sections 34-38-4, 34-38-5, and 34-38-6, and need not be limited to circumstances where there are indications of individual, job-related impairment of an employee or prospective employee.

(4) The employer's use and disposition of all drug or alcohol test results are subject to the limitations of Sections 34-38-8 and 34-38-13.

Enacted by Chapter 234, 1987 General Session

34-38-8. Employer's disciplinary or rehabilitative actions.

Upon receipt of a verified or confirmed positive drug or alcohol test result which 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 the following:

(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; or

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

Enacted by Chapter 234, 1987 General Session

34-38-9. No cause of action for failure to test or detect substance or problem, or for termination of testing 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 this chapter, for any of the following:

(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; or

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

Enacted by Chapter 234, 1987 General Session


34-38-10. No cause of action arises against employer unless false test result -- Presumption and limitation of damages in claim against employer.

(1) 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 this chapter, and who has taken any action under Section 34-38-8, unless the employer's action was based on a false test result.

(2) In any claim, including a claim under Section 34-38-11, where it is alleged that an employer's action was based on a false test result:

(a) there is a rebuttable presumption that the test result was valid if the employer complied with the provisions of Section 34-38-6; and

(b) the employer is not liable for monetary damages if his reliance on a false test result was reasonable and in good faith.

Enacted by Chapter 234, 1987 General Session

34-38-11. Bases for cause of action for defamation, libel, slander, or damage to reputation.

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 this chapter, unless:

(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; and

(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.

Enacted by Chapter 234, 1987 General Session

34-38-12. No cause of action for failure of employer to establish testing program.

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.

Enacted by Chapter 234, 1987 General Session

34-38-13. Confidentiality of information.

(1) All of the following received by the employer through his drug or alcohol testing program are confidential communications and may not be used or received in evidence, obtained in discovery, or disclosed in any public or private proceeding, except in a proceeding related to an action taken by an employer under Section 34-38-8 or an action under Section 34-38-11:

(a) information;
(b) interviews;
(c) reports;
(d) statements;
(e) memoranda; or
(f) test results.

(2) Except as provided in Subsections (3) and (6), test-related information is a confidential communication and may not be:

(a) used or received in evidence;

(b) obtained in discovery; or

(c) disclosed in any public or private proceeding.

(3) Test-related information:

(a) shall be disclosed to the Division of Occupational and Professional Licensing:

(i) in the manner provided in Subsection 58-13-5 (3); and

(ii) only to the extent required under Subsection 58-13-5 (3); and

(b) may only be used in a proceeding related to:

(i) an action taken by the Division of Occupational and Professional Licensing under Section 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 Subsection (3)(a);

(ii) an action taken by an employer under Section 34-38-8 ; or

(iii) an action under Section 34-38-11 .

(4) Test-related information shall be the property of the employer.

(5) An employer is entitled to use a drug or alcohol test result as a basis for action under Section 34-38-8 .

(6) An employer may not be examined as a witness with regard to test-related information, except:

(a) in a proceeding related to an action taken by the employer under Section 34-38-8;

(b) in an action under Section 34-38-11; or

(c) in an action described in Subsection (3)(b)(i).

Enacted by Chapter 234, 1987 General Session


34-38-15. No physician-patient relationship created.

A physician-patient relationship is not created between an employee or prospective employee, and the employer or any person performing the test, solely by the establishment of a drug or alcohol testing program in the workplace.

Enacted by Chapter 234, 1987 General Session

34-41-101. Definitions.
As used in this chapter:

(1) "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) "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) "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)

(a) "Local governmental entity" means any political subdivision of Utah including any county, municipality, local school district, special 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 67-19-33 through 67-19-38.

(5) "Periodic testing" means preselected and preannounced drug testing of employees or volunteers conducted on a regular schedule.

(6) "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) "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) "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) "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) "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) "Sample" means urine, blood, breath, saliva, or hair.

(12) "State institution of higher education" means the institution as defined in Section 53B-3-102.

(13) "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.

Enacted by Chapter 18, 1994 General Session

34-41-102. Governmental drug-free workplace policies.

(1) Any local governmental entity or state institution of higher education may establish workplace policies and procedures designed to:

(a) educate, counsel, and increase awareness of the dangers of drugs; and

(b) prohibit and discourage the detrimental use of drugs among its various classes of employees and volunteers.

(2) A local governmental entity or state institution of higher education may test employees, volunteers, prospective employees, and prospective volunteers for the presence of drugs or their metabolites, in accordance with the provisions of this chapter, as a condition of hiring, continued employment, and voluntary services.

(3) A drug-free workplace policy may include, but does not require, drug testing under the following circumstances:

(a) preemployment hiring or volunteer selection procedures;

(b) postaccident investigations;


(c) reasonable suspicion situations;

(d) preannounced periodic testing;

(e) rehabilitation programs;

(f) random testing in safety sensitive positions; or

(g) to comply with the federal Drug Free Workplace Act of 1988, 41 U.S.C. 701 through 707, or other federally required drug policies.

(4) This section may not be construed to prohibit local governmental entities or state institutions of higher education from establishing policies regarding other hazardous or intoxicating substances.
Enacted by Chapter 18, 1994 General Session

34-41-103. Policy requirements.

(1)

(a) Before testing or retesting for the presence of drugs, a local governmental entity or state institution of higher education shall:

(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.

(b) The local governmental entity or state institution of higher education may only test or retest for the presence of drugs by following the procedures and requirements of that ordinance or policy.

(2) The collection and testing of samples shall be conducted in accordance with Section 34-41-104 and not necessarily limited to circumstances where there are indications of individual, 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 63, Chapter 2, Government Records Access and Management Act, and Americans with Disabilities Act of 1990, 42 U.S.C. 12101 through 12213.

(4) An employee, prospective employee, volunteer, or prospective volunteer shall submit a split urine sample for testing or retesting.

(5) A split urine sample shall consist of at least 45 ml of urine. The urine shall be divided into two specimen bottles, with at least 30 ml of urine in one bottle and at least 15 ml of urine in the other. If the test results of the 30 ml urine sample indicate the presence of drugs, the donor of the test shall have 72 hours from the time he is so notified to request, at his option that the 15 ml urine sample be tested for the indicated drugs, the expense of which shall be divided equally between the donor and employer. In addition to the test results of the 30 ml urine sample, 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.

Amended by Chapter 197, 1996 General Session

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 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 this section.

(2) The local governmental entity or state institution of higher education may:

(a) require samples from its employees, volunteers, prospective employees, or prospective volunteers;

(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 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 reasonably to preclude the probability of erroneous identification of test results; and

(ii) employees, volunteers, prospective employees, or prospective volunteers have the opportunity to provide notification of any information:

(A) that any person named in Subsection (3)(c)(ii) 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 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.

(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 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.

Amended by Chapter 13, 1998 General Session

34-41-105. Rehabilitative and disciplinary actions.

(1) If a verified or confirmed positive drug test result indicates a violation of the local governmental entity's or state institution of higher education's written drug-free workplace policy, if an employee, volunteer, prospective employee, or prospective volunteer refuses to provide a sample in accordance with the written policy, or otherwise violates the written policy, an employer may use that test result, refusal, or violation as the basis for imposing any rehabilitative and disciplinary actions authorized by this section.

(2) If the conditions required by Subsection (1) are met, the employer may:

(a) 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;

(b) suspend the employee with or without pay for a period of time;

(c) terminate the employment or voluntary services;

(d) refuse to hire a prospective employee or use the services of a volunteer; and

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

Enacted by Chapter 18, 1994 General Session

34-41-106. Employee not disabled.

An employee, volunteer, prospective employee, or prospective volunteer whose drug test results are verified or confirmed as positive in accordance with the provisions of this chapter shall not, by virtue of those results alone, be defined as disabled for purposes of:

(1) Title 34A, Chapter 5, Utah Antidiscrimination Act; or

(2) the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 through 12213.

34-41-107. No physician-patient relationship created.

A physician-patient relationship is not created between an employee, volunteer, prospective employee, or prospective volunteer, and the local governmental entity, state institution of higher education, or any person performing the test, solely by the establishment of a drug testing program in the workplace.

Enacted by Chapter 18, 1994 General Session

67-19-36. Drug testing of state employees.

(1) Except as provided in Subsection (2), when there is reasonable suspicion that an 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 using a controlled substance or alcohol in violation of this part.

(2) In highly sensitive positions, as identified in department class specifications, random drug testing of employees may be conducted by an agency in accordance with the rules of the executive director.

(3) All drug or alcohol testing shall be:

(a) 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;

(b) conducted in accordance with the rules of the executive director made under Section 67-19-34; and

(c) kept confidential in accordance with the rules of the executive director made in accordance with Section 67-19-34.

(4) A physician, medical clinic, or testing facility may not be held liable in any civil action brought by a party for:

(a) performing or failing to perform a test under this section;

(b) issuing or failing to issue a test result under this section; or

(c) acting or omitting to act in any other way in good faith under this section.

Enacted by Chapter 280, 1990 General Session

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