By Sharon Bottcher, Director of Policy Services
What is the Importance of Defining Safety-Sensitive Employees/Positions in your Drug Testing Policy?
This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
A comprehensive policy accomplishes several critical objectives which vary from company to company. The outcome of each program objective is different based on the goals the company wants to achieve. Details on when testing is administered, how testing is conducted, and the consequences for a policy violation are essential. Equally important is outlining specifics on who will be required to comply with the testing program. Clearly defining which employees are covered under the policy eliminates the confusion of knowing when and to whom the policy procedures apply.
What Is a Safety-Sensitive Position?
In general, a safety-sensitive position is any job position determined by the company which by the nature of the work involved is accompanied by such risk that even a momentary lapse of attention could have serious consequences to the safety of the employee, coworkers, customers, the company, or the general public.
These are positions that have higher risk and therefore impairment caused by drugs or alcohol use can threaten the health or safety of any person. When an individual in one of these positions is under the influence, it can lead to high costs related to medical benefits and workers’ compensation. Which positions within each company qualify as safety-sensitive depend on the conditions and the industry for each company.
For instance, a construction company may include heavy equipment operators or roofers as safety-sensitive positions, whereas a manufacturing company may include maintenance personnel, warehouse personnel, or yard personnel. The are many different options for which roles a company designates as safety-sensitive, and each specific company is responsible for deciding which positions fall under the safety-sensitive category.
How to Determine Safety-Sensitive Positions?
To determine if a position should be classified as safety-sensitive, an employer must examine the job description and job tasks associated with an occupation. An employer must be able to demonstrate that the employee’s inability or impaired ability to perform job-related tasks could result in a direct threat to their safety or the safety of co-workers, the company, and/or the general public.
There are several laws and regulations that must be taken into consideration when making a list of safety-sensitive positions in the workplace. The state laws and federal regulations that are involved in regulating safety sensitive positions in the workplace include the following:
- U.S. Department of Transportation (DOT):
The federal regulations under the DOT have guidance for each agency (FMCSA, FAA, etc.) for employees in safety-sensitive positions. Each DOT agency has industry specific regulations that define safety-sensitive functions.
- Federal Laws:
Federal laws under the American with Disabilities Act (ADA) and the Equal Employment Opportunity Commission (EEOC), have limited and narrow guidelines to follow which should be fully investigated as part of the safety-sensitive determination process.
- State Laws:
Some states limit certain forms of testing such as random by only permitting it for safety-sensitive positions. Few state laws include safety-sensitive definitions, and many of those definitions are vague or are scarcely defined.
For instance, in Iowa the state defines a safety-sensitive position as a job wherein an accident could cause loss of human life, serious bodily injury, or significant property or environmental damage, including a job with duties that include immediate supervision of a person in a job that meets the requirement (see law for full details). However, in Nevada an employer cannot take action based on a marijuana positive test result in pre-employment purposes except for applicants in the following positions/industries including firefighters, emergency medical technicians, any position requiring an employee to operate a motor vehicle and for which federal regulations or state laws require the employee to submit to drug and alcohol testing, and any position that, in the employer’s opinion, could adversely impact other’s safety (see law for full details).
Before finalizing your safety-sensitive definition, verify the applicable state law and/or federal regulations to ensure that you are in compliance.
Why is the Designation of a Position as Safety-Sensitive Important?
The most talked about reason for designating positions as safety-sensitive is due to medical and/or recreational marijuana laws. It has become increasingly important to define safety-sensitive positions given the number of states with legal medical and/or recreational marijuana. While some states offer certain protections to employees for off-duty use, others include a carve out for employee in a “safety-sensitive” position that prohibits an individual in a certain classified designation from these protections. Let’s review a couple of examples.
The marijuana law in Oklahoma does not provide protections to individuals in safety-sensitive positions. This means 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 such as the handling, packaging, processing, storage, disposal, or transport of hazardous materials, the operation of a motor vehicle, other vehicle, equipment, machinery, or power tools, carrying a firearm, etc., is not provided the protections offered by the state’s marijuana law.
In Washington, D.C. an employer can act relating to cannabis use when the applicant or employee is in a safety-sensitive position or when action is required by federal statute, federal regulations, or a federal contract/funding agreement. “Safety-sensitive” refers to an employment position, as designated by the employer, in which it is reasonably foreseeable that if the employee performs the position’s routine duties or tasks while under the influence of drugs or alcohol, the person likely would cause actual, immediate, and serious bodily injury or loss of life to self or others.
In Washington, D.C., such positions may include, but are not limited to: providing security services or handling weapons, including firearms; operating a motor vehicle or heavy or dangerous machinery or equipment; working on an active construction site or one requiring occupational safety training; working on or near power or gas utility lines; handling hazardous materials; supervising or caring for individuals who are unable to care for themselves; and providing medical treatment requiring professional credentials, including administering medication or supervising or performing surgery.
Another important factor includes asking employees about their use of prescription medication. When a job duty is designated as safety-sensitive, employers have more latitude to ask questions about drug use. Employers, in certain circumstances, may require employees to report use of any prescription medication(s) that may interfere with their ability to safely perform their job duties. This can include individuals that have a medical marijuana card and are actively using it.
Marijuana may be legal in many states, but for the most part employers do not need to accommodate the possession, use, or being under the influence of marijuana on company property or company time, even if the employee has a prescription for medical marijuana or recommendation for the use of marijuana – safety sensitive position or not. However, it is essential that employers be aware of any applicable laws and details surrounding this issue based on their state(s) of operation.
Lastly, workers in safety-sensitive positions may be subject to a more inclusive range of testing such as random testing. In other circumstances a company may only choose to test employees working in hazardous positions. In either circumstance, identifying the job functions subject to this higher standard is essential.
Conclusion
The best approach to declaring a position safety-sensitive is to create a written policy that identifies safety-sensitive positions and clearly lays out expectations and obligations for employees in those positions. Let the experts at Current Consulting Group assist with designing your policy, including the appropriate safety-sensitive designations, by reaching out to policy@currentconsultinggroup.com to get the process started.
