McGuireWoods labor and employment associate John Thomas spoke with the Society for Human Resource Management for an Oct. 5, 2021, article posted on SHRM’s website, “What Is a ‘Safety-Sensitive’ Job Under State Marijuana Laws?” He discussed the difficulty multistate employers face trying to reconcile the patchwork of state cannabis laws with workplaces that employ people in safety-sensitive positions.
“Multistate employers sometimes struggle with what ‘safety-sensitive’ means,” noted Thomas in the article. In some cases, it refers to positions where a worker’s cannabis use might endanger people’s lives or the integrity of national borders. “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,” he explained. “Ultimately, it will depend on state law or even company policy.”
Companies must be flexible in adapting their drug testing practices and drug use policies to those rubrics. The interview also investigated a trend among a minority of states to protect off-duty, recreational marijuana use, in addition to medicinal marijuana. Some states that protect recreational use exclude safety-sensitive positions; others do not.
Thomas, who adds his employment law perspective to McGuireWoods’ cannabis, hemp and CBD team, said questions about cannabis use increased exponentially over the past few years as companies grapple with changing laws, workplace cultures and public perception.