Well, it varies from state to state, but there is a general consensus. With the recent amendment of Oklahoma’s marijuana law that now permits employers to have “zero tolerance” drug standards regarding medical marijuana users in “safety-sensitive” positions, we asked ourselves, “Just what is a ‘safety sensitive’ job?” It should be noted, the law (House Bill No. 3127) also revised the definition of “safety-sensitive” positions to remove employers’ discretion to classify positions and limits the definition to specific positions only. The amendment will take effect Nov. 1, 2026.
In general, a “safety sensitive” job under state marijuana laws is any position where an employee’s impairment could cause an immediate threat of serious injury, death or property damage to themselves or others. While nine different states – California, Connecticut, Minnesota, Montana, Nevada, New Jersey, New York, Rhode Island and Washington – protect off-duty cannabis use, specific safety roles are not protected, allowing employers to maintain a zero-tolerance drug policy.
Here are some common examples of safety sensitive jobs:
- Operating Vehicles/Machinery: Drivers (especially commercial drivers subject to DOT regulations), forklift operators and those operating heavy equipment or power tools.
- High-Risk Environments: Construction workers, employees working at heights or in confined spaces, and utility workers handling high-voltage electricity, gas or water.
- Public Safety & Health: Police officers, firefighters, first responders, correctional officers and security staff.
- Caregiving/Hazardous Materials: Healthcare providers, nurses, and pharmacists, as well as staff handling hazardous materials, chemicals or explosives.
Key considerations for employers:
- Definitions vary by state: Definitions differ by jurisdiction. For example, Texas says it could be any job that could cause a “significant incident,” while New Mexico focuses on “immediate or direct threats.”
- Individualized Assessment: Employers should evaluate specific job tasks, not just assign blanket designations, to ensure the classification is legally defensible.
- Federal Law Precedence: Regardless of state law, positions regulated by the Department of Transportation (DOT)—such as pilots and truck drivers—are prohibited from using marijuana.
- Impairment vs. Usage: While employers can often prohibit on-duty impairment, some states such as New York and New Jersey have strict rules against taking action based solely on a positive test if there is no evidence of impairment on the job, even in sensitive roles.
Here’s a few Best Practices:
- Audit Job Descriptions: Clearly define safety-sensitive duties in job descriptions.
- Train Supervisors: Train managers to identify signs of actual impairment on the job.
- Consistent Policy Application: Apply drug-testing policies uniformly based on the clearly defined safety-sensitive duties.
Employers should use a factual-based analysis to evaluate whether positions are safety-sensitive. Consider the tasks performed by the employee, rather than the employees’ title.
The information and opinions expressed are for educational purposes only and are based on current practice, industry-related knowledge and business expertise. The information provided shall not be construed as legal advice, express or implied.