The legalization of marijuana varies by state, causing employers to request safety-sensitive carve-outs to help them enforce safety in the workplace for positions that pose a risk. As state medicinal and recreational marijuana legislation pass, it’s vital that employers remain up-to- date on any recent changes that affect safety-sensitive carve-outs so as to not compromise safety, while also understanding their liability protections. New York City, for example, recently updated a rule that adds six new safety-sensitive positions to the carve-out included in the ordinance.
The New York City Commission on Human Rights (the Commission) passed an amendment to the city ordinance (the Ordinance) restricting pre-employment testing for THC or marijuana. The Ordinance, passed in spring 2019, limits pre-employment testing for THC or marijuana in the city to certain safety-sensitive positions only. The Ordinance is effective as of May 10, 2020, and the recently passed exemptions will be effective July 24, 2020.
What are the New Exemptions to the Ordinance?
The Commission added the following positions to the safety-sensitive exception in the Ordinance:
- Positions requiring employees to regularly work on active construction sites (or requiring work on active construction sites within one week of beginning employment).
- Positions requiring employees to regularly operate heavy machinery.
- Positions requiring employees to regularly work on or near power or gas utility lines.
- Positions requiring employees to operate motor vehicles on most work shifts.
- Positions requiring employees to fuel an aircraft, provide information about aircraft weight and/or balance, or maintain/operate aircraft support equipment.
- If impairment would interfere with the employee’s ability to take adequate care in carrying out his/her job duties and would pose an immediate risk of death or serious physical harm to the employee or others.
The amendment specifies that “a significant impact on health and safety” does not include an employer’s concern that a positive THC or marijuana drug test would indicate a lack of moral character or trustworthiness.
What Can DISA Do?
With marijuana laws continuing to make headlines, it’s likely that we’ll continue to see and expect new laws to pass or change their existing programs. Employers should establish a clear and concise written drug testing policy to further protect their company and employees. It’s critical that employers determine which positions are deemed safety-sensitive and abide by their state laws and carve-outs. DISA Global Solutions can help you ensure that your drug testing policy meets compliance standards and safety-sensitive carve-outs by state. Our professionals can also help provide audit support to better prepare you in the event of an audit and ensure that compliance and laws are being met.
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About DISA Global Solutions
Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 30 offices throughout the U.S. and Canada, DISA’s comprehensive scope of services includes drug and alcohol testing, background check, occupational health, and transportation compliance. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.