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." "Ultimately, it will depend on state law or even company policy."
"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. Supreme Court defined "safety-sensitive" as referring to positions where drug use might endanger the integrity of national borders or people's lives. Sometimes the term is defined by federal or state statute, and other times it is left to the employer's discretion or common sense.
"Multistate employers sometimes struggle with what 'safety-sensitive' means," noted John Thomas Jr., an attorney with McGuireWoods in Tysons, Va. Here are some tips to help employers with safety-sensitive roles navigate the maze of marijuana laws. 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." However, she said, employers should understand that the definition of "safety-sensitive" varies by state, and not all states have such exemptions.
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"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. But what exactly is a safety-sensitive job? 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.
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