Shannon Pierce of Fennemore Craig.
In November, Nevada voters legalized recreational marijuana with a new law that will go into effect on January 1, 2017.
Under the new law, the purchasing and use of recreational marijuana will be legal for Nevada residents 21 years of age and older.
The implications of the new law for businesses and employees will mostly be case by case, but there are some details to know as January 1 quickly approaches.
In some ways the new law doesn’t change anything. Employers have always had the option to say we don’t want employees on drugs in the work place.
“Companies that have a no drug policy, can generally keep those policies in effect, subject to certain limited exceptions,” Shannon Pierce of Fennemore Craig said in an interview with NNBW.
However, there are a couple question marks within those policies. For example, if an employee in Nevada has a medical marijuana card and is using marijuana for medicinal purposes.
“We have a separate statute that has already been in effect for a couple years now that deals with that,” Pierce said.
That statute says business have to provide reasonable accommodations for people who are using medical marijuana unless it poses a risk of safety or otherwise requires the employer to essentially re-write the employee’s position.
“We aren’t going to want fork lift drivers to be under the influence of medical marijuana while on the job,” Pierce said.
A typical office worker presents a different situation, however. An employer may need to accommodate them having medical marijuana in their system. Nevertheless, this does not mean they can consume or be under the influence while on the clock.
Where this really comes up is if an employer does drug testing.
“It is not as cut and dry as if you’ve got marijuana in your system during work hours, you’re fired. It doesn’t work that way,” Pierce explained.
“Employers need to think out: Is this for recreational use or is this for medicinal use?” she added.
The grey area of marijuana use doesn’t stop there, though. Just because there was a positive result on a drug test, does not necessarily mean the employee was under the influence at work.
Marijuana can stay in a person’s system a long time – 30 to 60 days if someone is a chronic user. This means an employee could test positive at work at a time when they’re actually not under the influence.
This circles back to the question, was it being used for medicinal or recreational purposes?
As the recreational law goes into effect in Nevada, Pierce explained that there is another statute on the books that may influence cases moving forward.
“It says you cannot discriminate against your employees for lawful off duty use of substances,” Pierce said.
This was originally meant to be the Smoker’s Bill of Rights.
The unknown right now is if the courts are going to use that very old statute and apply it to marijuana in the same way.
“My suspicion is that statute won’t be applied to recreational marijuana because marijuana use remains illegal under federal law,” Pierce said. “But, the point is we don’t know.”
“To boil this all down to how employers need to act,” Pierce said. “You can definitely update your policies to say you cannot be under the influence of drugs at work.”
This certainly warrants the question: Is there a more precise way to drug test?
“One thing we often see in the law is that a change in the law happens and then technology catches up,” Pierce said.
“The change in the law has created the need for an instant impairment test,” she added.
Moving forward, case-by-case, one of the biggest factors to be focused on will be if there is evidence of impairment.
“That is something that has been true with marijuana, not just recreational now, but medicinal,” Pierce said. “It has to be case by case.”
Pierce explained that over the next 18 to 24 months certain cases will produce certain rulings and the next case may either argue their similarity or their difference to that case.
“It will be a patchwork of cases that develops our law going forward,” Pierce said.
In sum, updating policies and circulating them among staff is the best course of action with recreational marijuana use going into effect.
