34A-2-302 - Employee's willful misconduct -- Penalty.
34A-2-302. Employee's willful misconduct -- Penalty.
(1) For purposes of this section:
(a) "controlled substance" is as defined in Section 58-37-2;
(b) "local government employee" is as defined in Section 34-41-101;
(c) "local governmental entity" is as defined in Section 34-41-101;
(d) "state institution of higher education" is as defined in Section 34-41-101; and
(e) "valid prescription" is a prescription, as defined in Section 58-37-2, that:
(i) is prescribed for a controlled substance for use by the employee for whom it wasprescribed; and
(ii) has not been altered or forged.
(2) An employee may not:
(a) remove, displace, damage, destroy, or carry away any safety device or safeguardprovided for use in any employment or place of employment;
(b) interfere in any way with the use of a safety device or safeguard described inSubsection (2)(a) by any other person;
(c) interfere with the use of any method or process adopted for the protection of anyemployee in the employer's employment or place of employment; or
(d) fail or neglect to follow and obey orders and to do every other thing reasonablynecessary to protect the life, health, and safety of employees.
(3) Except in case of injury resulting in death:
(a) compensation provided for by this chapter shall be reduced 15% when injury is causedby the willful failure of the employee:
(i) to use safety devices when provided by the employer; or
(ii) to obey any order or reasonable rule adopted by the employer for the safety of theemployee; and
(b) except when the employer permitted, encouraged, or had actual knowledge of theconduct described in Subsection (3)(b)(i) through (iii), disability compensation may not beawarded under this chapter or Title 34A, Chapter 3, Utah Occupational Disease Act, to anemployee when the major contributing cause of the employee's injury is the employee's:
(i) use of a controlled substance that the employee did not obtain under a validprescription;
(ii) intentional abuse of a controlled substance that the employee obtained under a validprescription if the employee uses the controlled substance intentionally:
(A) in excess of prescribed therapeutic amounts; or
(B) in an otherwise abusive manner; or
(iii) intoxication from alcohol with a blood or breath alcohol concentration of .08 gramsor greater as shown by a chemical test.
(4) (a) For purposes of Subsection (3), as shown by a chemical test that conforms toscientifically accepted analytical methods and procedures and includes verification orconfirmation of any positive test result by gas chromatography, gas chromatography-massspectroscopy, or other comparably reliable analytical method, before the result of the test may beused as a basis for the presumption, it is presumed that the major contributing cause of theemployee's injury is the employee's conduct described in Subsections (3)(b)(i) through (iii) if atthe time of the injury:
(i) the employee has in the employee's system:
(A) any amount of a controlled substance or its metabolites if the employee did not obtainthe controlled substance under a valid prescription; or
(B) a controlled substance the employee obtained under a valid prescription or themetabolites of the controlled substance if the amount in the employee's system is consistent withthe employee using the controlled substance intentionally:
(I) in excess of prescribed therapeutic amounts; or
(II) in an otherwise abusive manner;
(ii) the employee has a blood or breath alcohol concentration of .08 grams or greater.
(b) The presumption created under Subsection (4)(a) may be rebutted by evidenceshowing that:
(i) the chemical test creating the presumption is inaccurate because the employer failed tocomply with:
(A) Sections 34-38-4 through 34-38-6; or
(B) if the employer is a local governmental entity or state institution of higher education,Section 34-41-104 and Subsection 34-41-103(5);
(ii) the employee did not engage in the conduct described in Subsections (3)(b)(i) through(iii);
(iii) the test results do not exclude the possibility of passive inhalation of marijuanabecause the concentration of total urinary cannabinoids is less than 50 nanograms/ml asdetermined by a test conducted in accordance with:
(A) Sections 34-38-4 through 34-38-6; or
(B) if the employer is a local governmental entity or state institution of higher education,Section 34-41-104 and Subsection 34-41-103(5);
(iv) a competent medical opinion from a physician verifies that the amount in theemployee's system of the following does not support a finding that the conduct described inSubsections (3)(b)(i) through (iii) was the major contributing cause of the employee's injury:
(A) any amount of a controlled substance or its metabolites if the employee did not obtainthe controlled substance under a valid prescription; or
(B) a controlled substance the employee obtained under a valid prescription or themetabolites of the controlled substance if the amount in the employee's system is consistent withthe employee using the controlled substance intentionally:
(I) in excess of prescribed therapeutic amounts; or
(II) in an otherwise abusive manner;
(C) alcohol; or
(D) a combination of Subsections (4)(b)(iii)(A) through (C); or
(v) the conduct described in Subsections (3)(b)(i) through (iii) was not the majorcontributing cause of the employee's injury.
(c) (i) Except as provided in Subsections (4)(c)(ii) and (iii), if a chemical test that createsthe presumption under Subsection (4)(a) is taken at the request of the employer, the employershall comply with:
(A) Title 34, Chapter 38, Drug and Alcohol Testing; or
(B) if the employee is a local governmental employee or an employee of a stateinstitution of higher education, Title 34, Chapter 41, Local Governmental Entity Drug-FreeWorkplace Policies.
(ii) Notwithstanding Section 34-38-13, the results of a test taken under Title 34, Chapter
38, may be disclosed to the extent necessary to establish or rebut the presumption created underSubsection (4)(a).
(iii) Notwithstanding Section 34-41-103, the results of a test taken under Title 34,Chapter 41, may be disclosed to the extent necessary to establish or rebut the presumption createdunder Subsection (4)(a).
(5) If any provision of this section, or the application of any provision of this section toany person or circumstance, is held invalid, the remainder of this section shall be given effectwithout the invalid provision or application.
Amended by Chapter 295, 2000 General Session