DAR File No. 43669

Human Resource Management, Administration

Rule R477-14

Substance Abuse and Drug-Free Workplace

Notice of Proposed Rule

(Amendment)

DAR File No.: 43669
Filed: 04/26/2019 01:42:03 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

These changes incorporate the Utah Medical Cannabis Act, make organizational revisions, strengthen the focus on preventing impairment in the workplace, and makes technical adjustments to citations.

Summary of the rule or change:

The changes: 1) incorporate the Utah Medical Cannabis Act in Subsections R477-14-1(1), R477-14-1(3), and R477-14-2(2); 2) update citations found in Subsections R477-14-1(1) and R477-14-1(11); 3) modify policy to focus on preventing impairment in the workplace throughout Section R477-14-1; 4) modify the cutoff level for blood alcohol concentration (BAC) for non-safety sensitive positions in Subsection R477-14-1(12); 5) make organizational changes shifting content from the end of Section R477-14-1 into Section R477-14-2 and reorganizing that section for clarity; 6) revise provisions regarding rehabilitation in Subsection R477-14-2(3) and Section R477-14-3; and 7) revise Subsection R477-14-2(5) for clarity.

Statutory or constitutional authorization for this rule:

• Section 63G-2-3
• Section 67-19-6
• Section 67-19-18
• Section 67-19-33
• Section 67-19-34
• Section 67-19-35
• Section 67-19-36
• Section 67-19-37
• Section 67-19-38
• Section 26-61a-111

Anticipated cost or savings to:

the state budget:

These amendments are not expected to have any fiscal impact on state government revenues or expenditures because these changes are administrative in nature and do not impact budgets.

local governments:

These amendments are not expected to have any fiscal impact on local governments because this rule only applies to the executive branch of state government.

small businesses:

These amendments are not expected to have any fiscal impact on small businesses because this rule only applies to the executive branch of state government.

persons other than small businesses, businesses, or local governmental entities:

These amendments are not expected to have any fiscal impact on other individuals because this rule only applies to the executive branch of state government.

Compliance costs for affected persons:

There are no direct compliance costs for these amendments. This rule only affects the executive branch of state government and will have no impact on other persons. This rule has no financial impact on state employees.

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

After conducting a thorough analysis, it was determined that these proposed rule changes will not result in a fiscal impact to businesses. Rules published by the Department of Human Resource Management (DHRM) have no direct affect 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 this rule to employees of the executive branch of state government.

Paul Garver, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office 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:

• Bryan Embley at the above address, by phone at 801-538-3069, by FAX at , or by Internet E-mail at bkembley@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:

06/14/2019

Interested persons may attend a public hearing regarding this rule:

• 05/28/2019 10:00 AM, Senate Building, 420 N State Street, Kletting Room, Salt Lake City, UT

This rule may become effective on:

07/01/2019

Authorized by:

Paul Garver, Executive Director

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2020	FY 2021	FY 2022
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Person	$0	$0	$0
Total Fiscal Costs:	$0	$0	$0
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Benefits:	$0	$0	$0
Net Fiscal Benefits:	$0	$0	$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described in the narrative. Inestimable impacts for Non-Small Businesses are described in Appendix 2.

 

Appendix 2: Regulatory Impact to Non-Small Businesses

These amendments are not expected to have any fiscal impact on non-small business revenues or expenditures, because this rule only applies to the executive branch of state government.

 

 

R477. Human Resource Management, Administration.

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

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

(1) [T]Except as provided in Title 26, Chapter 61a, Utah Medical Cannabis Act, this rule implements the federal Drug-Free Workplace Act of 1988, found at 41 USC 8101, et seq., the Omnibus Transportation Employee Testing Act of 1991, found at 49 USC 5331, et seq.[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 drug and alcohol abuse;[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[.]; and

(c) Assure the protection and safety of employees, [and ]the public, and property.

(2) State employees should report to work fit for duty and able to safely and effectively perform all job functions.

(a) State employees are not prohibited from lawful use and possession of prescribed or over-the-counter medications unless the medication adversely affects their ability to safely or effectively perform their job duties. Any employee taking prescribed or over-the-counter medications will be responsible for consulting the prescribing physician and/or pharmacist to ascertain whether the medication may interfere with safe performance of his/her job. If the use of a medication could compromise the safety of employees, the public, or property it is the employee's responsibility to use appropriate personnel procedures (e.g. call in sick, use leave, request change of duty, notify supervisor, notify human resources) to avoid unsafe workplace practices.

(b) The illegal or unauthorized use of prescription drugs is prohibited. It is a violation of this rule to intentionally misuse and/or abuse prescription medication. Appropriate personnel action, up to and inculding dismissal from employment, may be taken if job performance deteriorates and/or other accidents occur.

[(2)](3) Except as provided in Title 26, Chapter 61a, Utah Medical Cannabis Act, state[State] employees may not unlawfully manufacture, dispense, possess, distribute, use or be under the influence of 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.

(a) Employees shall follow Subsection R477-14-1(2) outside of work if [any violations]the activity:

(i) directly affects the eligibility of state agencies to receive federal grants or to qualify for federal contracts of $25,000 or more[.]; or

(ii) prevents the employee from performing his/her duties safely or effectively.

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

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

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

[(6)](7) Final applicants, who are not current employees, may be subject to preemployment drug testing at agency discretion, except as required by law.

[(7)](8) Employees 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.

[(8)](9) Final candidates for transfer or promotion to a highly sensitive position are subject to preemployment drug testing at agency discretion, except as required by law.

(a) An employee transferring or promoted from one highly sensitive position to another highly sensitive position is subject to preemployment drug testing at agency discretion except as required by law.

(b) An employee who is reassigned to a highly sensitive position or assigned the duties of a highly sensitive position is not subject to preemployment drug testing.

[(9)](10) Employees in highly sensitive positions, as 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.

[(10)](11) This rule incorporates by reference the requirements of 49 CFR 40.87[(2003)].

[(11)](12) The State of Utah will use a blood alcohol concentration level of .04 for safety sensitive positions and [.08].05 for all other positions as the cut off for a positive alcohol test except where designated otherwise by federal regulations.

[(12)](13) 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 Policy and Procedures.

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

[(14)](15) Employees in federally regulated positions whose confirmation test for alcohol results are at or exceed the applicable federal cut off level when tested before, during or after performing highly sensitive duties, are subject to [discipline]disciplinary action which may include dismissal.

[(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; or

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

]

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) [M]Except as provided in Title 26, Chapter 61a, Utah Medical Cannabis Act, management may take disciplinary action which may include dismissal[.] if:

(a) there is a verified positive 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 assigned job tasks, even when the result of a chemical test is reported negative;

(d) an employee refuses a request to submit to testing under this policy;

(e) an employee substitutes, adulterates, or otherwise tampers with a drug or alcohol testing sample, or attempts to do so; or

(f) an employee violates any other portion of this rule.

[(3) An employee who refuses to submit to drug or alcohol testing may be subject to disciplinary action which may include dismissal.

(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; or

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

] [(6)](3) An employee who has a [confirmed]verified positive test for use of a controlled substance or alcohol in violation of these rules may [be provided the opportunity for a last chance agreement and ]be required to agree to participate, at 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 shall 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 Section 63G-2-302.

(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 the previously held position, or a position with a comparable or lower salary range.

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

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

[(8)](5) An employee who is convicted [for a violation under federal or state criminal statute which regulates]of manufacturing, distributing, dispensing, possessing, selling or using a controlled substance, under federal or state criminal law, 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. Drug and Alcohol Test Records.

(1) A separate confidential file of drug and alcohol test results and documents related [to the last chance agreements]rehabilitation shall be maintained and stored in the agency human resource field office.

(2) Test results shall be retained in accordance with the retention schedule.

 

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: [July 1, 2017]2019

Notice of Continuation: October 31, 2016

Authorizing, and Implemented or Interpreted Law: 63G-2-3; 67-19-6; 67-19-18; 67-19-33; 67-19-34; 67-19-35; 67-19-36; 67-19-37; 67-19-38