H.B. 130 Employment Medical Examination Expense Amendments: transcript

Thank you Mr. Chair. All my favorite Senator Vickers are in here. This is great, especially you. Senator Musselman. Okay. Uh, HB one 30, employment medical examination amendments. So this bill came about, uh, it's a constituent driven bill. Um, the code right now I think is pretty clear that employers are to pay for, uh, employment required drug testing. Where it's actually silent though, is what that means as far as how they pay it. And so someone reached out to me and indicated that their employer requires these pretty expensive tests, I guess, and then is not quick to reimburse them. Uh, other things that they've indicated is that they would have to take time off on paid leave, or they would be forced to use vacation to participate in these tests. So to try and stay within the spirit of what I think the original 10 of the bill was, but or the law was. But to also, you know, send a message that if you're gonna require these, you need to pay for 'em. We came up with this bill and what the bill says is, look, you gotta pay for these exams or these tests and you can't use reimbursement as a way to do it. Um, working with stakeholders, it would allow, I believe, for an employer to actually prepay or maybe give that employee or potential employee a check to cover the cost of that screening. But at the end of the day, they can't compel an employee to take time off without being, uh, paid for that time. Um, they can't force 'em to take vacation. They have to be compensated as if they were actually working. And that's what this bill does.

I make a motion. The house bill one 30 passes this committee with a favorable recommendation.

I waive. Thank you. Senator Ipson?

I waive. Okay, we'll place the motion.

I make a motion. We place this on consent.

Thank you Mr. Rice chair. So, HB one 30, um, corrects probably an under-reported problem we have in the state. Apparently we have some employees who work for organizations that might be headquartered outside of the state of Utah, and they're required to get drug tests, or they're required to get medical exams. And, and based on the, I guess, the vagueness of the current statute, the employer has elected to use reimbursement as a method for getting these drug tests paid for. So the employees are actually having to pay for these, and then the employer is slow to give them reimbursement, and the employees aren't confident they're actually getting the best cost when they get some of these tests done. The other problems that are being reported is that they're either having to use vacation to go get these exams done, or they're being forced to go get them during the day, but they're not getting paid for the time that they're getting these exams as required for their employment. So looking at the statute, um, what we've done is we've said, okay, uh, reimbursement is no longer an option. If you're an employer, you will be paying the out-of-pocket cost for these exams. Um, we've indicated that employers can no longer require them to use vacation, that they have to be compensated for their time if they're required to do it outside of regular business hours. But we've also clarified on behalf of the employer that these are only as it relates to employment. So if someone is injured or is on FMLA for any other reason other than employment, they can still compel them to say, for first responders, get a fitness for duty evaluation for maybe a broken arm or broken leg before they come back to work. In that case, they would not be required to pay for that. Also, you know, we don't require those who have driver's licenses. The state, you know, doesn't expect employers to pay for the cost of renewing your driver's license or a CDL. If you require a medical evaluation for A CDL as part of being a CDL holder, we wouldn't compel them to pay for that. So it doesn't really change anything in practice except say, Hey, if you're gonna require this as part of employment, you're gonna pay for it, period. That's really what the bill does. Yeah. Thank you. Does that, that conclude? Your presentation Concludes my presentation. Oh, uh, second amendment. I'm it speaking to the bill with the Second Amendment. So the second amendment's the only one that needs adopted. Got it. Thank you. Um, take it to the committee for clarifying questions.

I, if we're, if we're talking from a public safety perspective, let's say there's an employee that's, um, having a psychological response to an incident they were involved in, it's directly related to work, then the city would be required to pay for that. They could not compel the employee to go do that exam, compel the employee to pay for it, and then reimburse the employee. Also, if you're doing drug testing as part of either the pre-employment or you send them out for a random, you can't compel them to pay for that either.

Thank you. Uh, love the bill. I think this is a great idea. Uh, just wanna clarify on what you said. If somebody breaks their arm and they need a, a fitness test to get back to work, the employer wouldn't be required to pay for that fitness or for that evaluation. But I wanna make sure if that injury happened while they were on the job, the employer would still be required to, to cover that.

It's if it happened on personal time or outside, then that's on your, your responsibility to get That through. That is the absolute bright line.

Did it occur while they were working as a part of their work related function? Or did it occur outside of their regular working hours as part of say a recreational function? Yeah, correct. Thank you very much appreciate the work you did.

Uh, yeah. Uh, one question. I, I'm seeing something, uh, right, it says, uh, pre-employment, they're saying if, if, if they have a requirement to, for a drug test before pre-employment is, is that included?

Yeah. So if it was a condition of employment, then the employer should be required to pay for it. So what's happening is some organizations, if they require physical fitness testing prior to hiring a person, um, they're mandating, they go to their doctor, uh, have a physical evaluation done before they'll even let 'em participate in the process. There's another option they can use and that's a liability waiver. And so what we're saying is if you're an agency that is going to require them as part of the pre-employment process, then you should pay for that. If you don't want to pay for it, then you can just use the liability waiver.

Yeah. So I, um, I think most of this bill's pretty good, but I think the, the pre-employment I, I've worked in manufacturing, I've hired a lot of people on a, on the job application, it'll say, you have to be able to lift 50 pounds. Right? And so we're just gonna make sure that you can. And so if they can't, they don't get hired into the system, is it easy to pay that person and just kind of trying to walk through the logistics? Right. So you require a test, um, they don't pass that test so they don't get hired. How, how do you, how do you compensate that person? Or do you, are you required to compensate that person?

I, I actually appreciate that question. So if it is having an employee or forcing a prospective employee to go to a doctor to get an evaluation that actually isn't needed, I think is the issue. And so that is a decision that the employer has made. And so there's some concern that these prospective employees are gonna be paying for an examination and they're not gonna get employed. And so the option would be using the circumstance, um, I used as the example is there's nothing that requires them in code to actually go and get this evaluation done. The agency can opt to have the prospective employee actually just sign a waiver and then they don't have to go to the doctor at all. So the, it's compelling them that becomes the issue. Gotcha.

Good afternoon, representatives. My name is David Kitchen. I'm the HR director for Lehi City. And I understand the intent of this bill and I support the intent of the bill. But I think there's some language that's pretty broad that needs to be clarified. For example, if we, we've had an employee who failed a random drug test, and it's our policy that that person would be required to become clean and pay for their own drug testing until they can provide clearance of the, to, to provide that they're clean. And I have questions whether this bill would require the city to pay for that drug testing as is currently written. Um, I also have concerns that I think the definition of a medical exam is pretty broad. You know, does it apply to psychological exams? Does it apply for someone fitness for duty exams? Um, you know, workers' comp will cover on the job stuff. But I think as, as we've discussed, um, drawing that bright line, but the current language of the bill I think can be improved, especially in line 38, where it includes prospective employer or prospective employee. Um, I understand the intent of the bill, but I think there can be some clarification on making it a, a better bill. Thank you.

Absolutely. So the problem with the previous language is too big, right? So we're trying to make it clear. I'm afraid we can go down a rabbit hole and we can do these what ifs. I think the issue to the, the, the, the, the drug abuse example, for instance, they fail a drug test. If they took an illicit drug voluntarily and failed a drug test, I don't see how this bill would compel them to pay for the follow up. And so, I mean, again, we could hypothe, you know, use these hypotheticals. We, you know, we have attorneys. If clearly if the employee did something outside of work that resulted in the failure of that drug test, I don't see how we could compel the organization to pay for any follow-ups.

Yeah. Thanks Mr. Chair. Make a motion to adopt, uh, amendment two, two house bill one 30.

No. And to the committee and the sponsor, I'd love to get it on consent, but if there's still gonna be some issues or potential that you're worried about. I, I'm agnostic. That would be my sum. So

Oh, the substitute. Oh, sorry. Uh, I'll waive.

Thanks Mr. And vice chair, uh, motion to, uh, favorably pass out. Second oh house bill one 30. Employment medical examination expense amendments as amended.

Now matter. Meeting clerk House bill one 30. Employment medical examination Expense amendments by Representative Gwynn.

Thank you Mr. Speaker Otam, I'd like to move amendment three in my name. The motion is to adopt amendment number three.

Uh, yes please. What this does, so the bill's gonna make some clarifications, is re in regarding who's gonna pay for what as it relates to drug testing. And so we've also been asked to clarify when they would not be required to pay. And that's what this amendment does. Thank,

I'll waive Summation is waived.

Thank you Mr. Speaker. Pro Tem. Uh, so currently in statute, uh, we compel employers to pay for drug testing or medical examinations as it relates to employment. However, the current code is vague on how that payment is supposed to take place. It's also silent on the hours in which employees are required to take these exams. And I had a constituent reach out to me and what their employer was requiring is for them to go take an exam and then they would be reimbursed later. Some of these exams could be quite expensive and they could, they would wait weeks or months for some of that reimbursement. The other issue was, is they would be required to, uh, leave work to go take those exams. They weren't getting paid or they were required to use a vacation. And so what the bill does is specifically says employers are responsible for, uh, the cost of these exams. If they're required as a part of employment, they cannot compel or require, uh, an employee to pay for them and then allow to be reimbursed. Um, and it's, it's, it acknowledges that these exams are work hours. They don't necessarily have to go during their shift. However, if they are going to go outside of their shift, they need to be compensated. Uh, and like I had spoken to on the amendment, we actually further clarified that if these examinations are related to, uh, an injury or illness that is not related to their employment or the scope of their employment, that the employer is not compelled in those circumstances to pay for those follow-up exams. And with that, I'll take any questions. Mr. Speaker

I'll waive. Thank you. Voting is open

requires a medical examination as part of their current condition of employment, that the employer pays the full cost. It prevents shifting mandatory employment expec expenses onto the workers. So, uh, applies to employers including prospective employers. So, um, it can't, it can't say, well then that's a day off and you have to have a test taken on your, on your time and you pay for it. Our businesses are doing well and if they require a test as part of their job, then the the cost will be on their shoulders. That's the bill. Mr. President, thank

you President House Bill 3 78 comes to us from a challenge that arose in part due to the success of our state and the many people moving in and the growth