Updated May 7, 2019. This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
As legalized marijuana continues to expand throughout the United States, employers have begun calling for so-called “safety-sensitive carve-outs.” With safety on the line, it’s no wonder that employers in states with legal marijuana want to be assured of their continued rights to not only test safety-sensitive employees for marijuana but also take action after a positive test result.
More and more frequently, state medical and recreational marijuana legislation is passed that limits the abilities of employers in regard to marijuana in the workplace. Most commonly, newly passed legislation prohibits employers from taking negative employment actions based on a medical marijuana card holder’s positive drug test or their status as a cardholder. Taken even further, legislation is now commonly considered and passed that prohibits employers from even testing for marijuana, regardless of cardholder status. In some of these instances, the legislation has provided a “safety-sensitive carve-out,” meaning that some positions and industries are not subject to these laws that limit an employer’s rights when it comes to marijuana in the workplace. Such carve-outs allow employers to largely continue providing compliant workplaces while also keeping safety as a top priority.
Safety-sensitive carve-outs are being passed with wording and details that vary largely from state to state. Some states provide only vague language, such as “unless the employee/applicant is in a safety-sensitive position the employer cannot take action based on a medical marijuana cardholders’ positive test for THC metabolites.”Others provide exhaustive lists of which positions qualify as safety-sensitive for the purpose of testing. What remains clear, though, is that if marijuana legalization continues moving forward at the current pace, safety-sensitive carve outs will become an essential part of workplace safety.
Without safety-sensitive carve-outs, employers in safety-sensitive industries are forced to compromise safety or open themselves up to costly discrimination lawsuits should they choose to take disciplinary action against marijuana users. Safety-sensitive carve outs not only provide liability protections for employers but also allow for safer workplaces, impacting all employees and customers.
Following is a look at state-specific safety-sensitive carve-outs, along with an analysis of what protections employers are offered in those states.
Hawaii’s medical marijuana law does not include language designating an expansive safety-sensitive carve-out; however, one can be inferred based on particular language included in Hawaii Revised Statutes 329-122(e)(1):
“The authorization for the medical use of cannabis in this section shall not apply to: (1) The medical use of cannabis that endangers the health or well-being of another person.” (emphasis added)
Although the law is vague, an argument could easily be made that an individual in a safety-sensitive position, if impaired by marijuana in the workplace, would endanger the health or well-being of both their fellow employees and the general public. Generally speaking, the same argument could be made for the vast majority of positions that are traditionally considered to be safety-sensitive.
It is important to note that while a plain reading of the law provides protections to employers with medical marijuana-using employees in safety-sensitive positions in Hawaii, as of yet, there has been no court case that has support an employer’s rights. Due to the litigious nature of medical marijuana, it is likely that Hawaii (and other states) will see a case pertaining to disciplinary action taken against a medical marijuana-using employee that is in a safety-sensitive position.
Effective since 2017, Maryland’s medical marijuana law includes language that can be construed as a safety-sensitive carve out.
Maryland Code Health General 133314(a) states:
“This subtitle may not be construed to authorize any individual to engage in, and does not prevent the imposition of any civil, criminal, or other penalties for…(1)Undertaking any task under the influence of marijuana or cannabis, when doing so would constitute negligence or professional malpractice; (2) Operating, navigating, or being in actual physical control of any motor vehicle, aircraft, or boat while under the influence of marijuana or cannabis.” (emphasis added)
At a minimum, Maryland’s law includes wording that would allow employers to prohibit any employee/applicant that would be driving a car or other vehicle while at work from testing positive for marijuana, regardless of cardholder status. Additionally, it is likely that other safety-sensitive positions (e.g. mining, etc.) could be covered under this provision based on a determination that impairment in such a position would constitute negligence.
Similar to Hawaii, as of yet, there has been no case law in Maryland that has cemented the rights of employers in regard to safety-sensitive positions and medical marijuana users.
Missouri’s medical marijuana law, passed in 2018, permits medical marijuana use and includes specific language pertaining to marijuana in the workplace. While the law includes provisions for employees that are found to be under the influence of marijuana while at work, it also includes language that provides protections for employers with employees undertaking certain tasks.
Missouri Constitution Article XVI Section 7(1)(b) and 7(1)(c) state:
“Nothing in this section permits a person to:…(b) Undertake any task under the influence of marijuana when doing so would constitute negligence or professional malpractice; or (c) Operate, navigate, or be in actual physical control of any dangerous device or motor vehicle, aircraft or motorboat while under the influence of marijuana;”
Although not specific to the workplace, the language in the constitution provides that medical marijuana-using employees in operation of motor vehicles or who operate “dangerous devices” are not offered protection under the law. Additionally, it is likely that the majority of safety-sensitive positions would be covered under the language stipulating that an individual cannot undertake any task that would constitute negligence or professional malpractice should the individual be under the influence while performing the task. Due to the wording of the statute, it is likely that healthcare positions, such as doctors, surgeons, and nurses, are also prohibited from being under the influence of marijuana in the workplace regardless of cardholder status, as impairment in such a position is generally considered to be professional malpractice.
Nevada’s medical marijuana law requires employers to accommodate the medical needs of employees, however, the law also includes specific language regarding medical marijuana-using employees in safety-sensitive positions.
Nevada Revised Statute 453A.800(3) states:
“The provisions of this chapter do not…Except as otherwise provided…require an employer to modify the job or working conditions of a person who engages in the medical use of marijuana that are based upon the reasonable business purposes of the employer but the employer must attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, provided that such reasonable accommodation would not:
(a) Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or (b)Prohibit the employee from fulfilling any and all of his or her job responsibilities.” (emphasis added)
While generally speaking employers in the state are required to make accommodations for medical marijuana, a safety-sensitive carve out exists for those positions where an individual would pose a threat of danger if under the influence of marijuana or would be prohibited from fulfilling their duties if under the influence of marijuana. Generally speaking, most, if not all, traditionally safety-sensitive positions would fall under the umbrella of posing a danger if the employee was under the influence of marijuana. It is important to note that the safety-sensitive carve out in Nevada’s law includes language that would cover a wide variety of non-traditional safety-sensitive and other positions, as employers are not required to accommodate medical marijuana use if the employee would be unable to perform any of their job responsibilities due to the use of medical marijuana.
New Hampshire’s medical marijuana law does not specifically discuss discrimination in regard to medical marijuana and the workplace, however, it does mention the workplace in other areas. Employees are permitted to be under the influence of medical marijuana in the workplace if they have received written permission from their employer; however, certain positions and/or workplaces are precluded from this provision of the law based on a later section.
New Hampshire Statutes 126-X:3 II(a) states:
“Nothing in this chapter shall exempt any person from arrest or prosecution for:
(a) Being under the influence of cannabis while:
(1) Operating a motor vehicle, commercial vehicle, boat, vessel, or any other vehicle propelled or drawn by power other than muscular power; or… (3)Operating heavy machinery or handling a dangerous instrumentality.”
While it is up to the employer if they wish to provide permission for medical marijuana use by employees, certain positions and/or workplaces are not given this option due to the safety-sensitive carve-outs in the law. Namely, any position where an individual would operate a power-operated vehicle (e.g., a car, truck, forklift, etc.), heavy machinery, or handle dangerous instruments. Employees in such positions are not permitted to be under the influence of medical marijuana, regardless of employer permissions, providing a mandatory safety-sensitive carve out for employers that wish to permit medical marijuana drug test positives for general employees.
The New York City council passed an ordinance on May 9, 2019, that impacts pre-employment testing in terms of marijuana. The ordinance, the first of its kind, only applies to employers with employees in the city of New York. While legislators on the state level have mentioned similar bills in passing, the New York City ordinance is the first of its kind. Notably, the ordinance doesn’t only apply to medical marijuana users, but to all marijuana users, which makes it unique on this list.
The ordinance itself adjusts the administrative code of the city, prohibits employers from testing for THC for pre-employment purposes only as a condition of employment. However, options are provided for certain safety-sensitive industries/positions.
The New York City Administration Code 8-107 31(b) states:
“…(1) The provisions of this subdivision shall not apply to persons apply to work:
(A) As police officersor peace officers….or in a position with a law enforcement or investigative functionat the department of investigation;
(B) In any position requiring compliance with section 3321 of the New York city building code or section 220-h of the labor law;
(C) In any position requiring a commercial driver’s license;
(D) In any position requiring the supervision or care of children, medical patients, or vulnerable personsas defined in…. [the] social services law; or
(E) In any positions with the potential to significantly impact the health or safety of employees or members of the public, as determined by: (i) the commissioner of citywide administrative services for the classified service of the city of New York, and identified on the website of the department of citywide administrative services or (ii) the chairperson, and identified in regulations promulgated by the commission.” (emphasis added)
While limiting when it comes to the rights of many private employers, the city council saw fit to include protections for certain positions that are generally considered safety-sensitive. These positions include law enforcement/police officers, positions requiring a CDL, positions caring for children, positions caring for medical patients, and other positions with “the potential to significantly impact the health or safety of employees or members of the public.”
It is important to note that for a position to fall under the last safety-sensitive category, they must be identified by the Commissioner of citywide administrative services and included on the city’s website, or in regulations. At the time of this article’s authorship, no such list has been provided on the city’s website or via regulatory measures, meaning that only applicants for positions covered in (A)-(D) would be permitted to be tested for THC for pre-employment purposes. Regardless, New York City’s pre-employment ban on testing for THC as a condition of employment includes a specific safety-sensitive carve-out, providing employers with both safety protections and protections against potential lawsuits based on actions due to the highly specific wording of the ordinance.
Oklahoma approved medical marijuana in 2018; however, at the time of publishing the state is largely still in the process of putting a regulatory and sales system in place. House Bill 2612, passed in March 2019, includes provisions that prohibit employers from refusing to hire, discipline, discharge, or otherwise penalize medical marijuana cardholders based solely on their status as a medical marijuana cardholder.
The Oklahoma law includes a provision prohibiting employers from refusing to hire, disciplining, discharging, or penalizing medical marijuana cardholding applicants/employees based solelyon a marijuana-positive drug test. However, the law also includes wording that provides protections for employers with employees/applicants in safety-sensitive positions.
Oklahoma Statutes 63-427.8 K defines safety-sensitive as:
“…Any job that includes tasks or duties that the employer reasonably believes could affect the safety and healthof the employee performing the task or others including, but not limited to, any of the following:
a. the handling, packaging, processing, storage, disposal or transport of hazardous materials,
b. the operation of a motor vehicle, other vehicle,equipment,machineryor power tools,
c. repairing, maintaining or monitoring the performance or operation of any equipment, machinery or manufacturing process, the malfunction or disruption of which could result in injury or property damage,
d. performing firefighting duties,
e. the operation, maintenance or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation or distribution,
f. the extraction, compression, processing, manufacturing, handling, packaging, storage, disposal, treatment or transport of potentially volatile, flammable, combustible materials, elements, chemicals or any other highly regulated component,
g. dispensing pharmaceuticals,
h. carrying a firearm, or
i. direct patient careor direct child care.” (emphasis added)
Oklahoma’s law is unique in that it is the first medical marijuana law that provides such extensive guidance for employers in the state. In addition to the extensive list of traditional safety-sensitive positions, the law states that “…any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of the employee performing the task or others.”
The inclusion of this broad language permits employers to include a wide variety of positions in this safety-sensitive carve-out, potentially including positions that deal with data, and more. Perhaps the broadest carve-out on this list, Oklahoma’s model is one that hopefully other states will follow, allowing medical marijuana users to maintain their rights while still permitting employers to maintain safe workplaces.
West Virginia’s medical marijuana law generally prohibits employers from discharging, refusing to hire, retaliating, or discriminating against employees that are registered, medical marijuana users. The law, however, includes certain provisions that provide protections for employers in safety-sensitive industries or with employees in safety-sensitive positions.
Code of West Virginia 16-A-5-10 states:
(1) A [medical marijuana] patient may not operate or be in physical controlof any of the following while under the influence with a blood content of more than three nanograms of active tetrahydrocannabis per milliliter of blood in serum:
a. Chemicals which require a permitissued by the Federal Government or a state government or agency of the Federal Government or a state government.
b. High-voltage electricityor any other public utility.
c. Vehicle, aircraft, train, boat, or heavy machinery.
(2) A patient may not perform any employment duties at heightsor in confined spaces, including, but not limited to, miningwhile under the influence of medical cannabis.
(3) A patient may be prohibited by an employer from performing any task which the employer deems life-threatening, to either the employee or any of the employees of the employer, while under the influence of medical cannabis…
(4) A patient may be prohibited by an employer from performing any duty which could result in a public health or safety riskwhile under the influence of medical cannabis…” (emphasis added)
West Virginia’s medical marijuana law is unique in the sheer breadth and expanse of ways that employers in safety-sensitive industries are offered protections. First, employees working with specific hazardous chemicals, electricity, public utilities, vehicles, aircrafts, boats, or heavy machinery are prohibited from working while under the influence of more than 3 ng/mL of blood. Only West Virginia’s public works drug and alcohol testing laws mention cut-off levels for drug testing, deferring to federally indicated cut-off levels, so while the law does not allow a zero-tolerance marijuana policy for medical marijuana users in the aforementioned positions, it does provide strict guidelines for employers who test and take action against those employees/applicants.
Second, employees may not work in positions requiring accessing heights or those positions requiring work in confined spaces (such as mining) while under the influence of medical marijuana. Interestingly, this section of the law does not provide specific cut-off levels for determining if an employee is under the influence in these positions. As the general mandatory law in West Virginia does not provide cut-off levels, it could be inferred that an employer could enforce a zero-tolerance marijuana policy for these positions regardless of medical marijuana cardholder status (barring that the individual is not in a public works position).
Additionally, employees working on “life-threatening tasks,” as deemed by the employer, are not permitted to be under the influence of medical marijuana – this would cover a wide variety of traditional safety-sensitive positions. Finally, any task that could result in a public health or safety risk should the individual be determined to be under the influence of medical marijuana are prohibited. All in all, West Virginia’s law provides protections for nearly any traditional safety-sensitive position, allowing employers to continue providing safe workplaces regardless of other provisions in the law that prohibit workplace discrimination against medical marijuana using employees.
Certain state’s medical and/or recreational marijuana laws are worded so as to allow employers to retain all disciplinary/termination rights under the state’s general laws. In such states, as long as testing is performed in compliance with all applicable state drug and alcohol testing laws or federal regulations, employers don’t have need of a safety-sensitive carve out, as they retain all rights regardless of cardholder status or marijuana use. Following is a list of states where, as the law is currently written, employers do not need safety-sensitive carve outs:
Although these states currently have no need for safety-sensitive carve outs, employers would be wise to review progressing legislation in order to stay abreast of fast-changing laws. Already in 2019, legislation has been proposed that would limit the rights of employers in some of the afore-mentioned states, thus requiring a safety-sensitive carve out to be put in place if such legislation were to be passed.
With marijuana laws continuing to dominate the 2019 legislative session, it’s likely that we’ll soon see more states either pass new marijuana legalization laws or expand their existing programs. As employers continue to voice their need for testing rights, it is critical to underscore the importance of the safety-sensitive carve-out and the benefits that it provides not only for employers but also for the general public.
New York city’s pre-employment marijuana testing ban was the first of its kind, but already other laws prohibiting employers from testing for THC have been introduced in various states. Increasingly, it is becoming a trend for state laws to prohibit employers from taking action against medical marijuana cardholders based solelyon their status as medical marijuana users or a positive drug test for marijuana metabolites. As marijuana legalization continues moving forward, it is essential that employers push for new laws that include safety-sensitive carve-outs.
With 34 states and the District of Columbia already having medical marijuana programs in place, it is clear that the vast majority of state laws do not include safety-sensitive carve-outs. It is the duty of employers everywhere to petition lawmakers to make safety-sensitive carve-outs a standard feature in marijuana legalization laws, particularly if such laws provide discrimination protections for employees that limit employer’s abilities to test for and/or act on a marijuana positive result.
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