Does legal marijuana send your workplace policies up in smoke? | Voices: Dora V. Lane and Anthony L. Hall

About 13 percent of the adult U.S. population smokes marijuana, according to a 2016 Gallup poll. This is nearly double the percentage that reported such use in Gallup’s 2013 survey. After Nevada voters approved a ballot question this past November legalizing the recreational use of marijuana by persons 21 years of age or older, marijuana use by employees is expected to increase further. As a result, Nevada employers face a myriad of questions about how legalization will impact their employment policies and decisions.

Employees may not use or possess marijuana at work

Nevada law allows employers to implement policies prohibiting marijuana use and possession at the workplace and while employees are on duty. In addition, although it is not specifically stated in Nevada’s marijuana laws, employers appear to retain the right to terminate or discipline employees who violate workplace policies that prohibit using, possessing, or being impaired by marijuana while at work (subject to certain accommodation obligations).

Off-duty marijuana use and positive drug tests

If an employee appears to be “under the influence” while at work, but did not actually use or possess the marijuana while at work, employers likely have a reasonable basis to impose discipline or even fire the affected employee based on workplace policies. The best practice is to document observable behavior, such as being visibly affected or slow to react, and send the potentially impaired worker for an immediate drug screen. Employers should consider if reasonable accommodations for a medical marijuana user are required before taking a negative employment action.

When faced with an employee who is not visibly impaired at work, but tests positive for Tetrahydrocannabinol (THC), the active component in marijuana, remember that it is an unlawful employment practice for an employer to refuse to hire a prospective employee, or to discharge or discriminate against an employee because the employee engages in the lawful use of any product off-premises during nonworking hours, as long as the use does not adversely affect the employee’s ability to perform his or her job or the safety of other employees. Although no Nevada courts have yet decided whether this Nevada law protects marijuana users, the risk of such a claim exists. Notably, however, marijuana remains illegal under federal law, and the Colorado Supreme Court ruled last year that a Colorado employer did not violate that state’s lawful activities statute when it terminated a medical marijuana user who failed a random drug test.

Another concern is whether an employee terminated for marijuana use could successfully argue wrongful termination in violation of public policy, given the recent marijuana legalization. The Nevada Supreme Court typically shies away from creating new exceptions to the at-will employment doctrine and given marijuana’s illegal status under federal law, that argument faces an uphill battle.

Reasonable accommodation provision in medical marijuana law

Nevada’s medical marijuana law requires that employers attempt to make reasonable accommodations for the medical needs of an employee who holds a valid medical marijuana registry card in certain circumstances. There are various limitations on such accommodations, including that employers are not required to modify the job or working conditions of a person who uses medical marijuana when the job requirements or working conditions at issue “are based upon the reasonable business purposes of the employer.” In addition, employers need not provide reasonable accommodations that would pose a threat of harm or danger to persons or property, impose an undue hardship on the employer, or prohibit the employee from fulfilling any and all of his or her job responsibilities.

Unfortunately, we have little guidance from the Nevada courts as to what sorts of accommodations for medical marijuana users are reasonable. Consequently, employers should consider engaging in an interactive process with an employee who holds a valid registry medical marijuana card before taking any adverse action due to the employee’s off-duty medical marijuana use. Employers are not required, however, to reasonably accommodate recreational marijuana use.

Other laws affected by legal marijuana

Specific federal laws and regulations such as the Department of Transportation regulations and the federal Drug-Free Workplace Act of 1988 may present additional compliance challenges for employers. Moreover, Nevada’s Workers’ Compensation law provides that if an employee has “any amount of a controlled substance in his or her system” at the time of a workers’ compensation covered injury for which the employee does not have a “current and lawful prescription … or that the employee was not using in accordance with the provisions of” the Nevada medical marijuana laws, the controlled substance is presumed to be the proximate cause of the injury and benefits may be denied. The flip side, however, is that if the employee has a lawful prescription for medical marijuana, a positive test after a covered injury should be treated similarly as a positive test for any other lawfully prescribed drug for purposes of workers’ compensation.

Review your policies

Take this opportunity to review your workplace drug policies and revise them to reflect that the use, possession, or being under the influence of marijuana on work premises or while on duty is prohibited. Include a statement that your organization will comply with applicable reasonable accommodation laws. If faced with a positive marijuana drug test, engage in the interactive process to determine whether an accommodation is warranted.

By Dora V. Lane and Anthony L. Hall are partners at Holland & Hart LLP