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S.B. 23
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WORKERS COMPENSATION - EMPLOYEES
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WILLFUL MISCONDUCT
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Parley Hellewell
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AN ACT RELATING TO LABOR; AMENDING PROVISIONS RELATED TO EMPLOYEE
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MISCONDUCT AND WORKERS COMPENSATION; ADDRESSING THE APPLICATION
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TO STATE INSTITUTIONS OF HIGHER EDUCATION; PROVIDING A SEVERABILITY
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CLAUSE; AND MAKING TECHNICAL CHANGES.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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34A-2-302, as last amended by Chapter 187, Laws of Utah 1999
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
34A-2-302
is amended to read:
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34A-2-302. Employee's willful misconduct -- Penalty.
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(1) For purposes of this section:
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(a) "controlled substance" is as defined in Section
58-37-2
;
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(b) "local government employee" is as defined in Section
34-41-101
;
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(c) "local governmental entity" is as defined in Section
34-41-101
;
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(d) "prescription" is as defined in Section
58-37-2
; and
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(e) "state institution of higher education" is as defined in Section
34-41-101
.
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[(1)] (2) An employee may not:
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(a) remove, displace, damage, destroy, or carry away any safety device or safeguard
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provided for use in any employment or place of employment;
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(b) interfere in any way with the use of a safety device or safeguard described in
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Subsection [(1)] (2)(a) by any other person;
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(c) interfere with the use of any method or process adopted for the protection of any
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employee in the employer's employment or place of employment; or
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(d) fail or neglect to follow and obey orders and to do every other thing reasonably
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necessary to protect the life, health, and safety of employees.
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[(2)] (3) Except in case of injury resulting in death:
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(a) compensation provided for by this chapter shall be reduced 15% when injury is caused
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by the willful failure of the employee:
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(i) to use safety devices when provided by the employer; or
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(ii) to obey any order or reasonable rule adopted by the employer for the safety of the
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employee; and
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(b) except when the employer permitted, encouraged, or had actual knowledge of the
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conduct described in Subsection [(2)] (3)(b)(i) through (iii), disability compensation may not be
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awarded under this chapter or Title 34A, Chapter 3, Utah Occupational Disease Act, to an
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employee when the major contributing cause of the employee's injury is the employee's:
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(i) use of [illegal substances] a controlled substance for which the employee does not have
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a prescription at the time of the injury;
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(ii) intentional abuse [of drugs] in excess of prescribed therapeutic amounts of a controlled
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substance for which the employee has a prescription at the time of injury; or
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(iii) intoxication from alcohol with a blood or breath alcohol concentration of .08 grams
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or greater as shown by a chemical test.
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[(3)] (4) (a) For purposes of Subsection [(2)] (3), it is presumed that the major contributing
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cause of the employee's injury is the employee's conduct described in Subsections [(2)] (3)(b)(i)
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through (iii) if at the time of the injury, as shown by a chemical test:
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(i) the employee has in the employee's system:
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(A) any amount of [an illegal] a controlled substance or its metabolites if at the time of the
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injury the employee does not have a prescription for the controlled substance; or
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(B) [drugs] a controlled substance or its metabolites in excess of prescribed therapeutic
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amounts if at the time of the injury the employee has a prescription for the controlled substance;
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or
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(ii) the employee has a blood or breath alcohol concentration of .08 grams or greater.
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(b) The presumption created under Subsection [(3)] (4)(a) may be rebutted by evidence
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showing that:
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(i) the chemical test creating the presumption is inaccurate because the employer failed to
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comply with:
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(A) Sections
34-38-4
through
34-38-6
; or
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(B) if the employer is a local governmental entity or state institution of higher education,
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Section
34-41-104
and Subsection
34-41-103
(5);
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(ii) the employee did not engage in the conduct described in Subsections [(2)] (3)(b)(i)
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through (iii);
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(iii) the test results do not exclude the possibility of passive inhalation of marijuana
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because the concentration of total urinary cannabinoids is less than 50 nanograms/ml as
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determined by a test conducted in accordance with:
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(A) Sections
34-38-4
through
34-38-6
; or
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(B) if the employer is a local governmental entity or state institution of higher education,
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Section
34-41-104
and Subsection
34-41-103
(5);
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[(iii)] (iv) a competent medical opinion from a physician verifies that the amount in the
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employee's system of the following does not support a finding that the conduct described in
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Subsections [(2)] (3)(b)(i) through (iii) was the major contributing cause of the employee's injury
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[is not supported by the amount in the employee's system of]:
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(A) [illegal substances] a controlled substance or its metabolites if at the time of the injury
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the employee does not have a prescription for the controlled substance;
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(B) [drugs] a controlled substance or its metabolites in excess of prescribed therapeutic
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amounts if at the time of the injury the employee has a prescription for the controlled substance;
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(C) alcohol; or
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(D) a combination of Subsections [(3)] (4)(b)(iii)(A) through (C); or
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[(iv)] (v) the conduct described in Subsections [(2)] (3)(b)(i) through (iii) was not the
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major contributing cause of the employee's injury.
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(c) (i) Except as provided in Subsections [(3)] (4)(c)(ii) and (iii), if a chemical test that
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creates the presumption under Subsection [(3)] (4)(a) is taken at the request of the employer, the
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employer shall comply with:
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(A) Title 34, Chapter 38, Drug and Alcohol Testing; or
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(B) if the employee is a local governmental employee [as defined in Section
34-41-101
]
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or an employee of a state institution of higher education, Title 34, Chapter 41, Local Governmental
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Entity Drug-Free Workplace Policies.
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(ii) Notwithstanding Section
34-38-13
, the results of a test taken under Title 34, Chapter
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38, may be disclosed to the extent necessary to establish or rebut the presumption created under
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Subsection [(3)] (4)(a).
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(iii) Notwithstanding Section
34-41-103
, the results of a test taken under Title 34, Chapter
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41, may be disclosed to the extent necessary to establish or rebut the presumption created under
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Subsection [(3)] (4)(a).
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(5) If any provision of this section, or the application of any provision of this section to
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any person or circumstance, is held invalid, the remainder of this section shall be given effect
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without the invalid provision or application.
Legislative Review Note
as of 1-5-00 11:16 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.