By Christine M. Jensen
This information is provided for educational purposes only.  Reader retains full responsibility for the use of the information contained herein.

In previous newsletters, we examined how a strong, well-written job description and job task analysis can assist your defense of disciplinary action taken against a current employee or a claim of discrimination by a prospective employee who tests positive for marijuana. An employer has more latitude in asking about drug use and requiring drug testing of employees and prospective employees in safety sensitive positions. In order to determine if a position is a safety-sensitive one, an employer must examine the job description and job task analysis of an occupation.

What Determines if a Position is Safety Sensitive?

It is important to know which positions can legitimately be classified as safety-sensitive in order to remain in full compliance with the Americans with Disabilities Act of 1990 (the “ADA”) as well as with guidance from the Equal Employment Opportunity Commission (EEOC).

Safety-sensitive positions constitute not only the ones that immediately come to mind – truck driver, equipment operator, etc., but others where failure to perform can cause harm. A safety-sensitive position is one in which job performance can affect the safety of the employee and others.

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 and/or the safety of others. In the past, the EEOC has issued an informal guidance letter which concluded that municipal bus drivers were not in safety sensitive positions. Some states have taken action to address this seemingly misguided guidance from the EEOC with regulations of their own.

Recently, the Washington D.C Legislature introduced Bill 220530 which changes the definition of the term “safety-sensitive position” to describe any position where the following conditions exist: (1) the position includes duties or responsibilities that involve the supervision, custody, or care of children or youth, and (2) employee performance under the influence of alcohol or drugs could lead to physical injury or death to the employee or the children or youth under the employee’s care. If passed, teachers, child care workers, and coaches would be deemed to be in safety-sensitive positions. The State of Connecticut Department of Labor has designated over 300 occupations as safety-sensitive, including counseling assistants, general maintenance personnel and bus drivers.

Why is the Designation of a Position as Safety Sensitive Important?

Individual employers and industry associations should consider the EEOC’s narrow view of safety-sensitive and consider lobbying their State Legislature to enact regulations which would broaden the scope of occupations that are considered safety-sensitive. With the advent of legal medical marijuana in 31 US States and the District of Columbia, as well as legal recreational marijuana in 8 states and the District of Columbia, this designation can provide a layer of protection against negligent employment practices claims.

When an employee injures a coworker, customer, or member of the public and then tests positive for medical marijuana or even a legally prescribed opioid, an employer can find themselves facing a claim for negligent employment practices. When an occupation is designated as safety-sensitive, you have more latitude to ask questions about drug use and to test more frequently. These questions and testing can help you maintain a safer work environment and protect you better from liability.

When an occupation is designated as safety-sensitive, inquiries regarding whether an employee is currently taking any prescription drugs or medications, whether the employee has taken any such drugs or medications in the past, or monitoring an employee’s taking of such drugs or medications are permissible. You may also require a blood, urine, and breath analyses to check for alcohol use as well as tests to determine the current illegal use of drugs.

Job-Related and Consistent with Business Necessity

Under Title I of the ADA, an employer’s ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer, post-offer, and employment. At the first stage (prior to an offer of employment), the ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job. At the second stage (after an applicant is given a conditional job offer, but before starting work), an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category. At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.

The ADA requires employers to treat any medical information obtained from a disability-related inquiry or medical examination as well as any medical information voluntarily disclosed by an employee, as a confidential medical record. Employers may share such information only in limited circumstances with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA.

Sometimes the standard of job-related and consistent with business necessity may be met when an employer knows about a particular employee’s medical condition, has observed performance problems, and reasonably can attribute the problems to the medical condition. An employer also may be given reliable information by a credible third party that an employee has a medical condition, or the employer may observe symptoms indicating that an employee may have a medical condition that will impair the employee’s ability to perform essential job functions or will pose a direct threat. In these situations, it may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination.

Asking all employees about their use of prescription medications is not job-related and consistent with business necessity. In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat.

Have questions about your HR policies, training, or drug-free workplace policies? Contact the Current Consulting Group, LLC (CCG) at 215.240.8204. Our knowledgeable and professional staff members welcome the opportunity to work with you.

(C) 2010-2018 The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way full attribution to the author and copyright holder are required.

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