Understanding Utah Drug Testing Laws

An Overview of Drug Testing Laws in Utah

OVERVIEW OF UTAH DRUG TESTING LAWS
As in most states, Utah drug testing laws are relatively narrow. Specifically, in the employment context, they consist of only voluntary drug testing laws that pertain to government employees, and laws that simply create a general prohibition against the illegal use of drugs in the workplace.
Federal law may also intersect with Utah drug testing laws. Specifically, federal regulations implemented by the Department of Transportation ("DOT") mandate drug and alcohol testing for employees of transportation companies (airline, bus, rail and other transportation industries). In addition , the Drug-Free Workplace Act works to prohibit illegal drug use in workplaces that receive federal assistance or contracts.
An additional federal law of interest to employers is the Children’s Health Insurance Program Reauthorization Act (CHIPRA). CHIPRA requires states to provide information on drug testing to families applying for welfare assistance. However, there is no known link between Utah drug testing laws and the CHIPRA – all CHIPRA’s requirements are on the state and not private employers.
Further, it is worth noting that Utah drug testing laws do not apply to volunteer fire departments or other volunteer first responders.

What Types of Drug Tests Are Permitted?

Utah law permits employers to require any of the most common types of drug tests including urine, hair, saliva and blood tests. Moreover, Utah law specifically permits the use of urinalysis (i.e., urine test) for post-offered employment testing, unless the employment is for law enforcement, emergency medical personnel, child care providers, or certain positions in transit, aviation or public health. Absent a specific permission to conduct a different type of drug test, however, Utah law defaults to the use of a urinalysis.
As an incentive for prospective employees to provide a urine drug test, Utah law provides that an employer may not condition an offer of employment, or a change in the employee’s current position upon a positive test result. This prohibition, however, applies only to applicants who were offered employment, NOT to employees. Nor does this limitation prevent an employer from requiring as a condition of employment, the successful completion of pre-employment drug testing. Rather, the limitation simply means that as part of the drug-testing process, an employer may not deny an offer of employment based solely on a positive test result, such as with applicants who are disqualified as a result of that test. If, however, the employer administers a drug test before employment begins, and the test yields a positive result, the employer is free to terminate or rescind the offer of employment. Utah law also does NOT preclude employment based on a positive drug test result as a condition of that employment.
When an employer does conduct a drug test, Utah law absolutely prohibits an employer from testing an employee’s hair sample.
Any employer who conducts drug testing, moreover, must ensure that notice of the policy is provided to current employees and applicants for employment, and that both groups be notified of any health risks posed by such testing, such as the risks associated with the HIV/AIDS virus in certain types of tests. The drug test itself, however, is to be conducted in accordance with the current standards developed by the Federal Substance Abuse and Mental Health Services Administration. If an employer conducts drug testing under the terms of Utah law in accordance with these standards, such a drug screening shall be deemed reliable and scientifically valid. Utah law provides a presumption (unless rebutted) that a drug test is complete, reliable, and scientifically valid if tested pursuant to the above referenced federal standards.
Though in Utah there are no laws requiring employers to keep drug test results confidential, employers are otherwise strongly discouraged from disclosing an employee’s drug test results.

Employee Rights and Responsibilities

The law requires that an employer ask for consent prior to performing a drug test and is supposed to conduct the test only with the consent of the employee. Employees should be aware that consenting to a drug test may be a condition of employment, but it cannot be an implied condition of employment – the employer must obtain the employee’s consent prior to a drug test by clearly informing the employee that such consent is being given.
An employer may not refuse to hire an employee solely because the employee either (1) refuses to take a drug test or (2) tests positive on a drug test. An employer may not fire an employee simply because the employee tests positive on a drug test, unless prohibited by federal law or required by a federal contract or subcontract. If the drug testing policy is not uniformly applied, however, then the employee may be able to bring a claim against the employer. An employment applicant who tests positive for drugs may not sue the employer unless the drug test requirement was not justified by a legitimate business purpose.

Employer Rights And Obligations

Employers in Utah are obligated to provide notices to applicants and employees informing them about the possibility of being tested for drugs or alcohol, as well as the consequences for refusing to be tested. Utah does not have a specific law governing drug-free workplace policies, nor does it require employers to draft, maintain or follow any third party drug-free workplace policies.
However, the employer will be under an obligation to keep all records confidential and provide access only to those with a need to know such as supervisors with a need to know.
Furthermore, drug testing results may not be used as a disciplinary tool and the employer must not take any adverse action based solely on the results of the drug test absent other facts. Employers should be careful to use substance use disorder assistance programs properly and not in a manner that would be inconsistent with the requirements of the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the Affordable Care Act.

What Happens if You Fail a Drug Test?

Consequences of Failing a Utah Drug Test
For those drug tests where an employee draws a positive test result, options abound for the legal and professional consequences that may apply. Federal law heavily regulates certain types of employees and contractors in the transportation industry. They fall under the "Controlled Substance and Alcohol Testing Programs", Sections 382.101-129, 49 C.F.R., and their employers have a duty to provide mandatory drug tests, and face heavy fines if they do not correctly follow the rules. Any violation of these rules can be grounds for their commercial driver’s license to be revoked, among other consequences . These provisions also apply to commercial pilots, who can be in violation of the rules by refusing to submit to a drug test, or improperly completing the form for the test. These actions can result in medical certification denial. For most other employees in Utah, the "Consumer Commodity Protection Act" applies, found at Sections 35A-6-101-202, Utah Code Annotated. These laws govern the terms under which an employee can be drug tested. With regard to unemployment, if a required employee fails a drug test, he or she may be denied unemployment benefits. Even if employer negligence contributed to the employee’s failure, if the employee was required to take the test the termination would not be arbitrary.

Common Exceptions and Special Circumstances

The state of Utah has a number of special cases and exemptions added to its drug-testing laws that deal with a variety of situations. These often relate to the medical and rehabilitation needs of employees.
The law exempts the testing of employees for drugs that are "contained in a drug administered to or consumed by an employee as part of a supervised health care program." If an employee voluntarily decides to enter into a health program, such as a weight loss or smoking cessation initiative, he or she may not be tested for any substances contained in this program. Generally, any testing outside of a health-care program must be conducted for a "compelling business reason." Furthermore, the health care program does not have to be offered by the employer, just provided by a third-party who may also conduct drug tests while running a program.
Under Utah law, if an employee is a user of an "illegal drug" to the extent that it "impairs the employee’s performance or the safety of the employee or others," the company does not have to show that it has reasonable cause to suspect the employee will test positive before a drug test can be requested.
Per Section 34-38a-104(4), if an employer has implemented a drug-free workplace under Utah regulations, "the employer may not be required to grant an individual any accommodations under a uniform school medication policy for an individual with respect to incidental use of marijuana." In short, the law does not make clear what types of accommodations must be made for employees who are known users of medical marijuana.
The definition of a "rehabilitation program" allows for treatment related to alcohol or drug abuse. It may not apply to treatment programs that are court ordered as a condition of employment or entry into another program.

Recent Changes and Legal Developments

The 2018 Legislative session brought a number of new drug testing related bills. House Bill 55, the "Drug and Alcohol Screening Amendments" removes reporting requirements for private employers performing drug tests on certain job applicants. Heber City, Utah’s mayor pro tempore was replaced after being arrested for driving under the influence of alcohol. Salt Lake City and Park City were both fined for not following proper procedures during drug tests . Utah’s Attorney General issued new guidelines to limit the release of drug and alcohol testing results which resulted in the dismissal in another driving under the influence of drugs case. Salt Lake County agreed to pay out $650,000 in a wrongful arrest claim which was based on an inaccurate positive drug screen. A college professor was fired for using marijuana while he participated in a research study on medical cannabis. The Colorado Court of Appeals determined that an employer must provide an employee with any potential accommodation to take a drug test the employer is aware the employee may need.