Question: We plan to continue pre-employment drug testing for marijuana after Washington’s new restrictions go into effect on January 1, 2024. We heard one of the exceptions that would allow us to continue pre-employment marijuana testing is if impairment in the position “presents a substantial risk of death.” What does that mean and how can we be sure our positions meet the definition?
Answer: Frustratingly, we don’t know what it means; the law doesn’t include a definition and there’s still no guidance from the Washington Department of Labor and Industries (L&I). In the face of this uncertainty, our safety professionals have identified the following factors that might reasonably be taken into consideration. You can use these factors to decide whether you can make the case that your positions qualify, depending on your organization’s risk tolerance. The more factors below that point to a substantial risk of death, the more likely you’d be able to defend your organization’s use of pre-employment cannabis tests if challenged.
We recommend evaluating whether the position has:
- Core duties that involve tasks such as: operating dangerous equipment; entering or acting as the attendant for confined spaces; monitoring and repairing dangerous equipment; using highest levels of PPE like full face respirators or encapsulated suits; driving; maintaining public and employee safety; interacting with lethal substances or systems; executing lockout/tagout processes; or using fall protection;
- Duties that are of particular concern to L&I (e.g., logging, trenching, confined spaces, lockout/tagout, fall protection, or hazardous chemicals);
- Significant environmental hazards (e.g., exposure to extreme heat or cold, or hazardous atmospheres with unsafe air quality, such as anhydrous ammonia);
- Duties in close proximity to significant hazards;
- Significant time spent engaging in safety-sensitive work;
- Involvement in safety-sensitive processes or procedures across multiple areas (e.g., safety managers, maintenance professionals managing lockout/tagout procedures, operations and plant managers, outside sales professionals who drive, or truck drivers);
- Duties that have historically resulted in life threatening injuries;
- A high injury rate across the organization, industry, or nation; or
- Duties where it would be easy to explain why there’s a substantial risk of death if done while impaired (e.g., an individual working from heights while impaired has an increased likelihood of falling unsafe distances due to their impairment).
Once you’ve completed an assessment and decided you’re comfortable arguing the exception is met, we recommend reviewing and updating the Job Safety Analysis (JSA) for the role to document exactly why impairment while working presents a substantial risk of death. You should conduct this analysis for the position across your operation(s) to ensure consistency. The designation and the requirement for pre-employment cannabis testing should also be included in the relevant job postings and job descriptions. If you have questions, contact your Vigilant Law Group employment attorney.
