{"id":51538,"date":"2020-02-07T02:00:00","date_gmt":"2020-02-07T06:00:00","guid":{"rendered":"https:\/\/www.nationaldrugscreening.com\/?p=51538"},"modified":"2022-11-29T16:19:30","modified_gmt":"2022-11-29T21:19:30","slug":"safety-sensitive-for-marijuana-drug-testing","status":"publish","type":"post","link":"https:\/\/www.nationaldrugscreening.com\/blogs\/safety-sensitive-for-marijuana-drug-testing\/","title":{"rendered":"Safety Sensitive for Marijuana Drug Testing"},"content":{"rendered":"\n

Safety Sensitive for Marijuana Drug Testing – <\/strong><\/p>\n\n\n\n

By Dee Mason<\/a>, Working Partners<\/em><\/a>\u00ae<\/a>, Guest Blog Writer –
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See also Dee Mason on the Working Partners<\/a><\/strong>\u00ae Web Site<\/a> <\/strong><\/p>\n\n\n\n

As states continue to pass marijuana laws<\/a><\/strong>, more states are including carve-outs for safety-sensitive concerns (or adding such previsions to existing law).  These provide an employer the opportunity to be compliant with the law while buffering their liability by mitigating safety concerns for employees, customers, and the public at large. <\/p>\n\n\n\n

Up to this point in time, designating a position as safety-sensitive<\/strong> was specific to federal law (i.e. U.S. Department of Transportation<\/strong><\/a>).  A few employers have assigned other positions as safety-sensitive per their own definitions.  But considering employment protections becoming more frequently incorporated into marijuana legalization, a safety-sensitive designation for a non-mandated role (i.e. employees not subject to DOT) can be critically important for employers.<\/p>\n\n\n\n

That is because there are a number of states<\/strong> with employment protection; prohibiting an employer from restricting an employee or, leveling discipline or termination as a consequence of an employee\u2019s use of marijuana (with or without legal, medical authorization).  Yet, whether the state has legalized only medical marijuana or has added recreational use of marijuana, both circumstances create valid safety concerns for employers because as we know, marijuana can affect the psychomotor skills and cognitive abilities of an employee. <\/p>\n\n\n\n

It is with a focus on safety that some states are beginning to address \u201csafety-sensitive carve-out\u201d issues in their marijuana legislation.  Just like the variance between state marijuana laws, these safety-sensitive carve-outs can look different from state to state (or even among municipalities within a state). <\/p>\n\n\n\n

For example, there may be broad language in a law that declares the employer cannot take action against a person with legal medical marijuana authorization based on a positive test for THC or its metabolites unless<\/u><\/em> that individual is in a safety-sensitive role.  The employer is empowered to determine which positions are safety-sensitive.<\/p>\n\n\n\n

Generally speaking, a safety-sensitive position<\/strong><\/a> is any job where the employee\u2019s tasks that affect the safety of themselves or others.<\/p>\n\n\n\n

Other states with safety-sensitive carve-outs provide more detail without specifying a job title, as is the case in Oklahoma\u2019s law, \u201cAny job that includes tasks or duties that the employer reasonably believes could affect the safety and health<\/em> of the employee performing the task or others including, but not limited to, any of the following:\u2026 performing firefighting duties,\u2026 dispensing pharmaceuticals [or] \u2026 carrying a firearm.\u201d<\/p>\n\n\n\n

Some states more broadly describe job performance fraught with safety risks as a guide to designate positions that are forbidden to medical marijuana users.  For example, West Virginia\u2019s law states, \u201cA [medical marijuana] patient may not operate or be in physical control <\/em>of any of the following while under the influence with a blood content of more than three nanograms of active tetrahydro cannabis per milliliter of blood in serum:\u2026 v<\/em>ehicle, aircraft, train, boat, or heavy machinery<\/em>.\u201d<\/em><\/p>\n\n\n\n

Nevada\u2019s marijuana law requires reasonable accommodation by the employer for the medical needs of an employee who engages in the legally authorized use of medical marijuana providing such reasonable accommodation would not, \u201cPose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or<\/em> <\/em>(b)Prohibit the employee from fulfilling any and all of his or her job responsibilities.<\/em>\u201d<\/em><\/p>\n\n\n\n

 <\/em>Compared to states with safety-sensitive carve-outs, it should be noted that there are many more states wherein the employer retains disciplinary and termination rights within the marijuana and even employment laws.<\/p>\n\n\n\n

 Two tangential cautions for the employer:<\/p>\n\n\n\n