DAR File No. 32641

Human Resource Management, Administration

R477-14

Substance Abuse and Drug-Free Workplace

NOTICE OF PROPOSED RULE

DAR File No.: 32641
Filed: 04/30/2009, 05:58
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

Amendments update drug and alcohol testing procedures and standards, simplify the rule, and discern between general employees, highly sensitive employees, and employees subject to federal regulations. Amendments also more clearly articulate pre-employment testing standards. References are also corrected.

Summary of the rule or change:

Subsections R477-14-1(7) and (8) and text in Subsection R477-14-1(9), (10), and (14) are removed. New language is grouped together for easier understanding in the new Subsections R477-14-1(9) through (11). Unnecessary Section R477-14-3 is removed.

State statutory or constitutional authorization for this rule:

Sections 67-19-6, 67-19-18, 67-19-34, 63G-2-3, and 67-19-38

Anticipated cost or savings to:

the state budget:

These changes are administrative and do not directly impact state budgets.

local governments:

This rule only affects the executive branch of state government and will have no impact on local governments.

small businesses and persons other than businesses:

This rule only affects the executive branch of state government and will have no impact on other persons.

Compliance costs for affected persons:

This rule only affects agencies of the executive branch of state government.

Comments by the department head on the fiscal impact the rule may have on businesses:

Rules published by the Department of Human Resource Management (DHRM) have no direct effect on businesses or any entity outside state government. DHRM has authority to write rules only to the extent allowed by the Utah Personnel Management Act, Title 67, Chapter 19. This act limits the provisions of career service and these rules to employees of the executive branch of state government. The only possible impact may be a very slight, indirect effect if an agency passes costs or savings on to business through fees. However, it is anticipated that the minimal costs associated with these changes will be absorbed by agency budgets and will have no effect on business. Jeff Herring, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Human Resource Management
Administration
Room 2120 STATE OFFICE BLDG
450 N MAIN ST
SALT LAKE CITY UT 84114-1201

Direct questions regarding this rule to:

J.J. Acker or Michael Tribe at the above address, by phone at 801-537-9096 or 801-538-3627, by FAX at 801-538-3081 or 801-538-3081, or by Internet E-mail at jacker@utah.gov or miketribe@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

06/15/2009

Interested persons may attend a public hearing regarding this rule:

6/02/2009 at 9:00 AM, State Capitol, Rm. 250

This rule may become effective on:

07/01/2009

Authorized by:

Jeff Herring, Executive Director

R477. Human Resource Management, Administration.

R477-14. Substance Abuse and Drug-Free Workplace.

R477-14-1. Rules Governing a Drug-Free Workplace.

(1) This rule implements the federal Drug-Free Workplace Act of 1988, Omnibus Transportational Employee Testing Act of 1991, 49 USC 2505; 49 USC 2701; and 49 USC 3102, and Section 67-19-36 authorizing drug and alcohol testing, in order to:

(a) Provide a safe and productive work environment that is free from the effects of unlawful use, distribution, dispensing, manufacture, and possession of controlled substances or alcohol use during work hours. See the Federal Controlled Substance Act, 41 USC 701.

(b) Identify, correct and remove the effects of drug and alcohol abuse on job performance.

(c) Assure the protection and safety of employees and the public.

(2) State employees may not unlawfully manufacture, dispense, possess, distribute or use any controlled substance or alcohol during working hours, on state property, or while operating a state vehicle at any time, or other vehicle while on duty except where legally permissible.

(a) Employees shall follow Subsection R477-14-1(2) outside of work if any violations directly affect the eligibility of state agencies to receive federal grants or to qualify for federal contracts of $25,000 or more.

(3) All drug or alcohol testing shall be done in compliance with applicable federal and state regulations and policies.

(4) All drug or alcohol testing shall be conducted by a federally certified or licensed physician or clinic, or testing service approved by DHRM.

(5) Drug or alcohol tests with positive results or a possible false positive result shall require a confirmation test.

(6) Employees[ in non highly sensitive positions] are subject to one or more of the following drug or alcohol tests:

(a) reasonable suspicion;

(b) critical incident;

(c) post accident;

(d) return to duty; and

(e) follow up.

(7) [For employees in non highly sensitive positions, the State of Utah will use the same cut off levels for positive drug tests as the federal government. This rule incorporates by reference the requirements of 49 CFR 40.40, Sections 85 to 87 (2002), Laboratory Analysis Procedures.

(8) For employees in non highly sensitive positions, the State of Utah will use a blood alcohol concentration level of .08 as the cut off for a positive alcohol test.

(9) ]Final applicants for highly sensitive positions, or e[E]mployees who[ hold highly sensitive positions,] are final candidates for, are transferred to, or are assigned the duties of a highly sensitive position[, and final applicants for highly sensitive positions] are subject to preemployment drug testing at agency discretion except as required by law.[one or more of the following drug or alcohol tests:

(a) reasonable suspicion;

(b) critical incident;

(c) post accident;

(d) return to duty;

(e) follow up;

(f) preemployment;

(g) random.

(10) For employees in highly sensitive positions, the State of Utah will use the same cutoff levels for positive drug and alcohol tests as the federal government. This rule incorporates by reference the requirements of 49 CFR 40.40, Sections 85 to 87 (2002), Laboratory Analysis Procedures, 49 CFR 382.107 (2002), Definitions, 49 CFR 382.201 (2002), Alcohol Concentration and 49 CFR 382.505 (2002), Other Alcohol Related Conduct.]

[(11)](8) Employees in highly sensitive positions, as [approved]designated by DHRM, are subject to random drug or alcohol testing without justification of reasonable suspicion or critical incident. Except when required by federal regulation or state policy, random drug or alcohol testing of employees in highly sensitive positions shall be conducted at the discretion of the employing agency.

(9) This rule incorporates by reference the requirements of 49 CFR 40.87 (2003).

(10) The State of Utah will use a blood alcohol concentration level of .08 as the cut off for a positive alcohol test except where designated otherwise by federal regulations.

(11) Agencies with employees in federally regulated positions shall administer testing and prohibition requirements and conduct training on these requirements as outlined in the current federal regulation and the DHRM Drug and Alcohol Testing Manual.

(12) Employees in [highly sensitive]federally regulated positions whose confirmation test for alcohol results are [.02 or greater]at or exceed the applicable federal cut off level, when tested before, during, or immediately after performing highly sensitive functions, must be removed from performing highly sensitive duties for 8 hours, or until another test is administered and the result is less than [.02.]the applicable federal cut off level.

(13) Employees in [highly sensitive]federally regulated positions whose confirmation test for alcohol results are [.04 or greater]at or exceed the applicable federal cut off level when tested before, during or after performing highly sensitive duties, [may be]are subject to corrective action or discipline.

(14) [Agencies with employees in positions requiring a commercial driver license shall administer testing and prohibition requirements and conduct training on these requirements as outlined in the current DHRM Drug and Alcohol Testing Manual.

(15) ]Management may take disciplinary action if:

(a) there is a positive confirmation test for controlled substances;

(b) results of a confirmation test for alcohol meet or exceed the established alcohol concentration cutoff level;

(c) management determines an employee is unable to perform [his ]assigned job tasks, even when the results of a confirmation test for alcohol shows less than the established alcohol concentration cutoff level.

(1[6]5) The agency human resource field office or authorized official shall keep a separate, private record of drug or alcohol test results. The employee's official personnel file shall only contain a document making reference to the existence of the drug or alcohol test record.

 

R477-14-2. Management Action.

(1) Under Rules R477-10, R477-11 and Section R477-14-2, supervisors and managers who receive notice of a workplace violation of these rules shall take immediate action.

(2) Management may take disciplinary action which may include dismissal.

(3) An employee who refuses to submit to drug or alcohol testing may be subject to disciplinary action which may include dismissal. See Section 67-19-33.

(4) An employee who substitutes, adulterates, or otherwise tampers with a drug or alcohol testing sample, or attempts to do so, is subject to disciplinary action which may include dismissal.

(5) Management may also take disciplinary action against employees who manufacture, dispense, possess, use, sell or distribute controlled substances or use alcohol, per Rule R477-11, under the following conditions:

(a) if the employee's action directly affects the eligibility of the agency to receive grants or contracts in excess of $25,000.00;

(b) if the employee's action puts employees, clients, customers, patients or co-workers at physical risk.

(6) An employee who has a confirmed positive test for use of a controlled substance or alcohol in violation of these rules may be required to participate, at [his]the employee's expense, in a rehabilitation program, under Subsection 67-19-38(3). If this is required, the following shall apply:

(a) An employee participating in a rehabilitation program shall be granted accrued leave or leave without pay for inpatient treatment.

(b) The employee must sign a release to allow the transmittal of verbal or written compliance reports between the state agency and the inpatient or outpatient rehabilitation program provider.

(c) All communication shall be classified as private in accordance with [Title 63, Chapter 2]Section 63G-2-3.

(d) An employee may be required to continue participation in an outpatient rehabilitation program prescribed by a licensed practitioner on the employee's own time and expense.

(e) An employee, upon successful completion of a rehabilitation program shall be reinstated to work in [his]the previously held position, or a position with a comparable or lower salary range.

(7) An employee who fails to complete the prescribed treatment without a valid reason shall be subject to disciplinary action.

(8) An employee who has a confirmed positive test for use of a controlled substance or alcohol is subject to follow up testing.

(9) An employee who is convicted for a violation occurring in the workplace, under federal or state criminal statute which regulates manufacturing, distributing, dispensing, possessing, selling or using a controlled substance, shall notify the agency head of the conviction no later than five calendar days after the conviction.

(a) The agency head shall notify the federal grantor or agency for which a contract is being performed within ten calendar days of receiving notice from:

(i) the judicial system;

(ii) other sources;

(iii) an employee performing work under the grant or contract who has been convicted of a controlled substance violation in the workplace.

 

[R477-14-3. Rule Distribution.

The Department of Human Resource Management shall distribute this rule to every state agency for communication to its employees.

 

]R477-14-4. Policy Exceptions.

The Executive Director, DHRM, may authorize exceptions to this rule consistent with Subsection R477-2-2(1).

 

KEY: personnel management, drug/alcohol education, drug abuse, discipline of employees

Date of Enactment or Last Substantive Amendment: [August 21, 2008]July 1, 2009

Notice of Continuation: December 6, 2006

Authorizing, and Implemented or Interpreted Law: 67-19-6; 67-19-18; 67-19-34; [63-19-37]63G-2-3; 67-19-38