Employers, do your zero drug tolerance policies allow you to discipline an employee for using marijuana if the employee is legally using medical marijuana in Nevada? The answer may surprise you.
A recent federal court held that just because marijuana is illegal under federal law does not bar a discrimination claim by an employee based on conduct protected by state medical marijuana laws. In other words, discipline your employees with caution.
Nevada’s law goes even farther. Here, even though an employer does not have to permit an employee to use marijuana in the workplace, it is required to accommodate an employee’s need for medical (not recreational) marijuana.
NRS 453A.800 Costs associated with medical use of marijuana not required to be paid or reimbursed; medical use of marijuana not required to be allowed in workplace; medical needs of employee who engages in medical use of marijuana to be accommodated by employer, other than law enforcement agency, in certain circumstances. The provisions of this chapter do not:
- Require an insurer, organization for managed care or any person or entity who provides coverage for a medical or health care service to pay for or reimburse a person for costs associated with the medical use of marijuana.
- Require any employer to allow the medical use of marijuana in the workplace.
- Except as otherwise provided in subsection 4, require an employer to modify the job or working conditions of a person who engages in the medical use of marijuana that are based upon the reasonable business purposes of the employer but the employer must attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, provided that such reasonable accommodation would not:
(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.
The statute has quite a few inherent problems, including:
- It does not define “employee.” Therefore, employers cannot be sure whether it applies to only current employees or whether it also applies to applicants;
- Second, there is no enforcement mechanism for the statute, leaving an employer unable to predict liability and an employee without a way to challenge an employer’s failure to meet the statute’s requirements;
- In requiring an employer to accommodate the need for medical marijuana, the statute ventured well beyond any mandate imposed by Article 4, Section 38 of the Nevada Constitution; and
- The statute provides two different accommodation standards by first stating that an employer does not need to modify those “job or working conditions” that are “based upon the reasonable business purposes of the employer,” and then stating that an accommodation is not reasonable if it would prohibit an employee from fulfilling any and all job responsibilities.
To our knowledge, this statute has not been tested by the courts. That leaves this area a minefield for the unwary. If you have an employee who is eligible for medical marijuana, contact an employment attorney to discuss your options before disciplining for marijuana use.