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
"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.