Recreational Marijuana Legalized in Nevada

By Megan Annis, HR & Client Care Manager

Please read below excerpts from an article from Holland & Hart.

Though marijuana remains illegal under federal law, effective January 1, 2017, Nevada voters approved the legalization of recreational marijuana by persons 21 years of age or older. As such, marijuana use by employees is expected to rise and increase the volume of marijuana-related issues in the workplace.

Employees May Not Use or Possess Marijuana At Work

Nevada law allows employers to prohibit marijuana use and possession by employees while at work. Employers also have the right to terminate or discipline employees who violate workplace policies prohibiting the use, possession, or impairment by marijuana while at work (barring certain accommodation obligations).

Off-Duty Marijuana Use and Positive Drug Tests

If an employee appears to be impaired at work, employers can send the employee for a reasonable suspicion drug test. First, the behaviors in question must be carefully documented. It can be challenging to determine when an employee is under the influence or impaired at work. It may be “easier” if the employee is visibly affected or slow to react; however, side effects from marijuana vary from person to person. As a result, employers should not automatically assume that someone was “under the influence” if their drug screen comes back positive. Steps must be taken to evaluate if legal medical marijuana accommodations are required before the employee is disciplined or terminated.

Reasonable Accommodations For Medical Marijuana Users

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 card, subject to certain limitations. Specifically, employers do not need to provide reasonable accommodations that would:

(a) Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or
(b) Prohibit the employee from fulfilling any and all of his or her job responsibilities.

Employers are advised to engage in an interactive process with an employee who holds a valid medical marijuana card before taking any negative employment action due to the employee’s off-duty marijuana use.

1. If the employee tests positive for marijuana, the question becomes why the employee is taking the marijuana. Employers must first determine if the employee has a valid medical marijuana card.
2. If the employee is taking marijuana for medical reasons, the employer must evaluate if they can reasonably accommodate the employee’s medical needs, including the use of off-duty medical marijuana (and further accommodations may be needed for the potential underlying medical condition that necessitates the marijuana consumption).
3. If this was simply recreational use, the employee may be terminated in compliance with the company’s drug and alcohol policy. Or, the employer may choose to consider marijuana a lawful product, and remind the employee that they cannot be impaired at work. Further signs of impairment may lead to termination.

Note: There is no reasonable accommodation requirement for recreational marijuana use.

Workers’ Compensation and Marijuana

If an employee has a lawful medical marijuana prescription, a positive test following a Workers’ Compensation injury should be treated the same as a positive test for any other lawfully prescribed drug.

Final Thoughts

If faced with a positive marijuana drug test result, ask the applicant/employee if he or she holds a valid medical marijuana card, and if so, determine whether an accommodation for off-duty medical marijuana must be made. Take time to remind employees of your policies in light of the legalization of recreational marijuana in Nevada. Remember that as your partners in business, we’re here to help guide you through these uncomfortable conversations to ensure the best outcome for your employees and your business.