As employers grapple with evolving marijuana laws and their impact on the workplace, they should note that many states that provide employment protections for cannabis users have exceptions for workers in safety-sensitive roles. But what exactly is a safety-sensitive job?
“Safety-sensitive generally means that a position involves some aspect of a heightened danger that requires an employee’s full and unimpaired skills and judgment to safely execute his or her job,” said Mary Will, an attorney with Faegre Drinker in Denver. However, she said, employers should understand that the definition of “safety-sensitive” varies by state, and not all states have such exemptions.
Glenn Grant, an attorney with Crowell & Moring in Washington, D.C., said, “There is little doubt that the patchwork of emerging state marijuana laws is making it significantly more difficult for employers to create and enforce uniform drug-testing policies that are consistent with the laws in all of the jurisdictions in which they operate.”
Here are some tips to help employers with safety-sensitive roles navigate the maze of marijuana laws.
Check the Details
“Multistate employers sometimes struggle with what ‘safety-sensitive’ means,” noted John Thomas Jr., an attorney with McGuireWoods in Tysons, Va. Sometimes the term is defined by federal or state statute, and other times it is left to the employer’s discretion or common sense.
In one case, the U.S. Supreme Court defined “safety-sensitive” as referring to positions where drug use might endanger the integrity of national borders or people’s lives.
“Other cases have applied variations on that theme, usually by referencing whether a worker, if impaired, would likely cause substantial bodily injury, property damage or death,” Thomas explained. “Ultimately, it will depend on state law or even company policy.”
New Mexico defines a “safety-sensitive position” as “a position in which performance by a person under the influence of drugs or alcohol would constitute an immediate or direct threat of injury or death to that person or another.”
Oklahoma defines such roles as “any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of the employee performing the task,” such as dispensing pharmaceuticals, carrying a firearm or handling hazardous materials.
In Pennsylvania, medical marijuana patients are prohibited from performing employment duties in small, confined spaces or at great heights and can be prohibited by their employer “from performing any duty which could result in a public health or safety risk while under the influence of medical marijuana.”
In these examples alone, Will said, the general intent of the safety-sensitive exceptions is the same, but the specifics vary.
The Iowa Supreme Court recently ruled that two employees who stacked cigarette boxes were improperly classified as safety-sensitive workers under Iowa’s drug-testing statute. The court found that safety-sensitive jobs pose a risk that “an accident could cause loss of human life, serious bodily injury, or significant property or environmental damage.”
The court cautioned employers not to classify all warehouse positions as safety-sensitive, Will noted. “The case provides a good reminder to employers to assess safety-sensitive positions on a job-by-job basis rather than make blanket designations of groups of employees.”
In many states, employers can treat all employees the same when it comes to drug tests, Thomas observed. “However, employers often choose to treat safety-sensitive employees differently because of the increased risk of injury or damage that can occur if such employee is impaired.”
Jennifer Mora, an attorney with Seyfarth Shaw in San Francisco, said if state or local law doesn’t clearly define “safety-sensitive,” a good approach is to focus on the duties the employee regularly performs (rather than sporadically performs) and ask whether those duties create a risk of harm to the employee, other workers or the general public.
Employment Protections Also Vary
Some workers, such as drivers who are subject to the U.S. Department of Transportation’s (DOT’s) rules, must regularly pass drug tests, regardless of state and local cannabis laws.
Kristin White, an attorney with Fisher Phillips in Denver, noted that some states, such as Colorado, don’t have safety-sensitive carveouts because employers retain the right to fire workers for marijuana use based on an employer policy.
Some jurisdictions protect registered medical marijuana patients but not recreational users. Thomas noted, however, that a trend is developing among a minority of states—such as Connecticut, Montana, Nevada, New Jersey and New York—to protect off-duty, recreational marijuana use. Some of those states exclude safety-sensitive positions, while others do not.
Additionally, some state laws have specific carveouts for law enforcement officers and other first responders. Nevada law, for example, prohibits employers from making employment decisions based on a positive marijuana test, but the law doesn’t apply to firefighters, emergency medical technicians or other safety-sensitive roles.
Grant noted that New York and New Jersey effectively prohibit employers from taking adverse action against employees or job applicants based solely on a positive marijuana test, even if the position at issue would otherwise qualify as safety-sensitive.
However, he said, no state law permits employees to use or be impaired by marijuana while at work, so it would be permissible for an employer to take adverse action against an employee based on a positive marijuana test and additional evidence that the employee was impaired on the job.
“Any adverse action flowing therefrom would not be based solely on the positive test,” Grant explained.
Mora noted that many state limits on cannabis testing apply to pre-employment screening, so employers should consider developing strong practices related to reasonable-suspicion drug testing.
“Employers should train their managers and supervisors on the signs of impairment and best practices for determining whether someone is impaired,” she recommended, adding that employers should have checklists and be ready to defend any action taken based on a reasonable-suspicion determination.
“Workplace safety is a primary concern for all employers,” Will said. “When developing drug-testing policies for safety-sensitive roles, employers should devote time and resources to an audit of the specific tasks involved in all jobs that may be safety-sensitive.”
White suggested that employers use an objective, factual analysis to evaluate whether positions are safety-sensitive. “Employers should look at the tasks performed by the employee, not just the title. [Employers should make] an individualized determination and not make generalizations as to what tasks are performed for a specific role.”