Summary

Patients would be prohibited from performing any employment duties of a safety-sensitive position while impaired. The bill defines “safety-sensitive position” to mean a position that requires any activity that an employer reasonably believes presents a potential risk of harm to the health or safety of an employee or others while under the influence of medical marijuana. This would include, but not be limited to:

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• Duties performed at heights or in confined spaces

• The operation of a motor vehicle, other vehicle, equipment, machinery, or power tools

• Repairing, maintaining, or monitoring the performance or operation of any equipment, machinery, or manufacturing process that a malfunction could result in injury or property damage

• Performing firefighting duties

• The operation, maintenance, or oversight of critical services and infrastructure, including electric, gas, and water utilities, power generation or distribution

• The extraction, compression, processing, manufacturing, handling, packaging, treatment, or transportation of potentially volatile, flammable, combustible materials, elements, chemicals or other highly regulated component

• Dispensing pharmaceuticals

• A position that requires the employee to carry a firearm

• Direct patient care or direct childcare

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“Under the influence” would be defined to mean a drug test pursuant to which it is determined that an employee or job applicant tests positive for marijuana at a level of THCa in urine equal to or greater than 15 nanograms per milliliter or fails to submit to a marijuana test.

“Impairment” would be defined to mean:

1. Symptoms of being under the influence of marijuana that may decrease or lessen an employee's performance of essential duties or tasks that an employer, in good faith, believes will result in carelessness, negligence or disregard for the safety of themselves or others and disrupt business operations.

2. Observable symptoms of impairment from medical marijuana may include, but are not limited to, the employee's speech, mobility, physical dexterity, agility, coordination, demeanor, appearance, odor or irrational or unusual behavior.

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The bill also prohibits a patient from operating or being in physical control of chemicals, high-voltage electricity, or any other public utility that requires a permit issued by the federal government or a state government or agency while under the influence of medical marijuana. For these purposes, “under the influence” would mean having a blood content of more than 10 nanograms of active THC per milliliter of blood in serum.

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The bill provides clarification that there is nothing that would require an employer to commit any act that would put the employer in violation of federal or state law. Employers would be permitted to indicate that a job position’s application process requires a marijuana test but would not be required to do so. Any employee or job applicant that tests positive for marijuana would be allowed to disclose and produce a valid identification card to the employer as documentation for testing positive or lawfully being under the influence of marijuana.

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Employers that offer jobs for safety-sensitive positions, as defined, would be permitted to require an employee or job applicant to submit to a test for marijuana and be able to make an adverse employment decision if an employee or job applicant provides an altered testing sample or refuses to submit to a test; fails to disclose and produce a valid medical marijuana ID card; or produces a valid ID card, and is impaired, if the position is safety-sensitive.

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The bill specifies that nothing would create a cause of action for an employee or job applicant for a safety-sensitive position based on an employer’s belief that the employee or job applicant violated a lawful workplace drug policy; or on any actions taken by an employer, this would include subjecting an employee or applicant to a marijuana test; an employer's belief that an employee used or possessed medical marijuana in the workplace or while performing essential functions of a safety-sensitive position; and any claim that arises as a result of an employee’s impairment while at work.

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Nothing under this bill would be construed to invalidate or void any right afforded by an existing collective bargaining agreement for employees. This bill would be effective 60 days after approval.