Nevada employers need to rewrite policies to address recreational marijuana
November 21, 2016
If Nevada’s business owners and managers weren’t busy enough with budget and strategic plans at this time of year, they now have less than six weeks to get ready for the legalization of recreational marijuana in the state.
More than 54 percent of voters in the Nov. 8 election approved Question 2 on the state ballot, which establishes a framework for distribution and taxation of recreational marijuana.
The use of the description “recreational marijuana” may prove to be misleading for most businesses. What happens during employees’ recreational hours has a proven history of spilling into their working hours as well.
As employers prepare for the new world of recreational marijuana in Nevada, they need to remember that the laws remain very confusing.
Voters in Nevada, as well as seven other states and the District of Columbia, have approved the use of marijuana for recreational purposes. But marijuana remains illegal under federal law, and the distribution of marijuana is a federal offense everywhere, including the states that have voted otherwise.
President Obama took a fairly relaxed approach to the enforcement of marijuana laws, but there’s no promise that President Trump will do the same.
The demands of a safe workplace mean that employers have a substantial interest in the use of recreational marijuana by their employees. Whether workers enjoy marijuana or bourbon on their off-duty hours, employers can — and should — establish rules that require that employees must not be under the influence of alcohol or drugs during the workday.
For starters, employers will want to ensure that they clearly bar marijuana from the workplace. Some employees may mistakenly believe the new state law gives them the right to carry joints around with them. If they’re not allowed to carry half pints of lime vodka in their pockets, they shouldn’t be allowed to carry packets of marijuana, either.
The only drug-and alcohol-testing law on Nevada’s books covers only public-sector employers and their staffs. But the law provides a good model for the private sector as well.
Essentially, the state law allows testing for drugs or alcohol if the employer has a reasonable belief, based on objective facts, that the employee is under the influence and unable to perform work duties.
The law says the employee needs to be informed of the reasons that the test will be ordered. And employees may refuse the test, with the understanding that they still may face discipline.
That’s a good outline for any drug-testing program.
But the state law takes matters a step further with the requirement that employees who test positive for drugs or alcohol must be referred to an Employee Assistance Program after the first failed test.
That requirement provides employers with a structured, well-considered approach to retaining good employees who face substance-related issues in their lives.
Just as legal use of recreational marijuana raises new questions for employers, it raises the potential of new problems for employees as well.
Staff members may remember the relatively low-powered marijuana of their youth only to be knocked backwards by one of the powerful new strains on the market. Some folks are certain to experiment once recreational marijuana becomes legal, and some experiments are certain to go awry.
And some employees who never have faced a bit of trouble with legalized alcohol might find themselves getting into deep water with the recreational use of marijuana. An Employee Assistance Program can provide a safety net.
Medically prescribed marijuana, an entirely separate matter, also remains on the books in Nevada. While most employers have had a year to nail down policies on medical marijuana, two aspects of state law remain noteworthy:
Employers are not required to accommodate the medical use of marijuana in the workplace.
Insurers, including organizations that self-insure, are not required to reimburse anyone who is covered by their insurance for the costs of medical marijuana.
But the medical marijuana law creates some potential pitfalls for employers as they prepare to address recreational marijuana.
Employers may, for instance, want to ban all marijuana use in the workplace. While this makes sense, employers will want to touch base with an attorney who specializes in employment to ensure the ban doesn’t violate nondiscrimination rules.
It’s unlikely that clear-cut answers will be available any time soon to the myriad questions raised by the vote to legalize recreational marijuana. Smart employers and human-relations professionals will keep a close eye on the news and seek out wise counsel as the new law takes effect.
But for starters, we are certain that policies based on the need for workplace safety will be on solid ground. Companies that provide Employee Assistance Programs or other help to employees with marijuana-related problems also will be on solid ground.
Most important is this: With any workforce issue, safety and employee well being always is the right thing to do.
Valerie Clark is the president of Clark & Associates of Nevada Inc., an insurance brokerage firm specializing in the development of health insurance plans for employer groups of all sizes.