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What Is a Safety-Sensitive Job Under State Marijuana Laws?

What Is a Safety-Sensitive Job Under State Marijuana Laws?

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 …