Nevada employers can do a lot today to prepare for employees’ use of medical marijuana despite legal uncertainties surrounding the new state law.
“Address it just like any other prescription drug to avoid being a test case,” says Anthony Hall, a partner in the Reno office of the Holland & Hart LLP law firm. “Amend your policies as fast you can.”
Hall, who spoke with other industry experts at an NNBW-sponsored seminar last week, says the Nevada law, which went into effect in April, is unclear on certain issues, suggesting it will be contested in court.
“A big open question is about the broad scope of accommodation,” says Hall, referring to an employer’s responsibility to accommodate employees with disabilities.
Hall says the law appears to require less of an obligation to accommodate, but he suggests employers follow the Americans with Disabilities Act for guidance. The federal law says nothing about the use of medical marijuana, but it likely covers the underlying condition the marijuana is used to treat.
One clear change in the law, says Hall, pertains to workers’ compensation. Under workers’ comp, if an accident occurs while an employee is intoxicated, the presumption is intoxication was the cause and the burden is on the employee to prove otherwise.
With medical marijuana, the presumption has been reversed and the onus is on the employer to prove an employee’s marijuana use precipitated the accident.
The Occupational Safety and Health Administration regulations don’t address medical marijuana use either, but the general duty clause applies and requires all employers to provide a workplace free of hazards that could cause harm or death, says John Skowronek, managing member with Square One Solutions, a staffing and OSHA training firm in Reno.
Employers should focus on an individual’s ability to do his or her job and judging that based on impairment rather than use, says Skowronek.
“We may see whole new science looking at impairment,” he says.
Skowronek said federal laws prohibiting individuals with certain disabilities and medications from performing some jobs – such as school bus drivers or pilots — provide a safe harbor for some employers.
To determine if someone is capable of performing a job under medication, companies should create a simple form for physicians to fill out, says Dennis Rochier, medical director of Primary Care at Renown Health.
The form should be used universally for all prescribed drugs, not just for medical marijuana, and should contain the job description with three options for the physician to check off, indicating whether or not someone could perform the job safely while medicated. A third option would say an employer would need to test someone performing the job – for machine operators, for example — to determine if there is any danger.
Cindy Davis, founder of Strategic HR Partners in Reno, says employers need to be aware what information will be provided by a drug testing facility and make sure it jibes with the company policy.
Davis said employers need to educate themselves about medical marijuana, which can treat pain and nausea with little else effect.
Nor is it always smoked, says Ed Alexander, who is applying to operate a medical marijuana dispensary in Nevada. He said like with other pharmaceuticals, it can be delivered in a variety of ways, including ingestion and transdermal patches. Alexander said employers, wittingly or not, have been employing medical marijuana users for years, since a Nevada law passed in 2001 allowed patients to grow marijuana for their own consumption.
He says broader laws are likely on their way, with recreational use expected to be discussed during the 2015 Nevada Legislature. “You’ll be able to knock me over with a feather if there’s no recreational use by 2016,” he says.