RENO, Nev. — Anthony Hall has a message for employers.
“Don’t be the first test case,” Hall cautions.
The Holland & Hart attorney was speaking to a room full of human resources representatives at the 2018 Nevada Employers Conference. The annual event, hosted by the Nevada Association of Employers, was held June 15 at the Grand Sierra Resort in Reno.
Hall spoke about dealing with the evolving cannabis laws, which have left Nevada employers in a haze of uncertainty regarding rights and obligations to regulate marijuana.
“The laws are really in a state of flux, and employers have to decide whether they’re going to come down on the spectrum of choices,” Hall said in an interview with the Northern Nevada Business View following the conference. “It’s complex, because there’s no right answer.”
After all, positive test results for marijuana use are climbing in safety-sensitive jobs — such as pilots and truck drivers — that require federally regulated testing, according to a previous NNBV reports.
In fact, positive marijuana tests surged about 75 percent in the United States over the last four years — jumping from 5.1 percent in 2013 to 8.9 percent in 2016.
The laws in Nevada
Nevada’s medical marijuana statute requires that employers attempt to make “reasonable accommodations” for the medical needs of an employee who uses medical marijuana and holds a valid registry medical marijuana card.
However, according to statute, the accommodation is not considered reasonable if it: A) poses a threat of harm or danger to persons or property, B) imposes an undue hardship on the employer, or C) prohibits the employee from fulfilling any and all of his or her job responsibilities.
Nevada is one of only a few U.S. states that has enacted laws requiring employers to provide an accommodation for medical marijuana patients, Hall said. Notably, Nevada’s statute does not require any employer to allow the use or possession of medical marijuana in the workplace.
With that, Hall urges Nevada employers to engage in an interactive process with any employee holding a valid medical marijuana card before taking any action due to the employee’s off-duty marijuana usage. Simply put, not all positive marijuana tests are terminable offenses.
Zero tolerance risk
Across the country, courts have begun recognizing an employer’s duty to accommodate under state marijuana laws.
Hall pointed to a key case in Massachusetts last year in which an employee had Crohn’s disease and told her employer about using medicinal marijuana to treat her condition. Yet, when she later tested positive for marijuana, the company fired her under its zero tolerance policy.
However, the Massachusetts Supreme Court ruled that marijuana is as lawful as the use and possession of any other prescribed medication, and an employee should not have to choose between treating a health condition and keeping a job.
“If (Nevada) courts go that direction, saying (medical marijuana) is the same as any other prescription, given that our statute is even more marijuana-friendly than Massachusetts was, that can really make it complex for employers,” Hall said.
Hall said his advice to employers is to take a middle-of-the-road approach — provide for a reasonable accommodation when someone has a valid card — and take “zero tolerance” out of their marijuana policy language.
“I think it’s too risky given our statutes,” Hall said. “‘Zero tolerance’ is asking for a lawsuit that a judge might go, ‘you’re not an accommodating employer and the statute requires it.’ The middle road is the safer road until we know how it’s going to play out.”
An exception in Nevada is the Nevada Department of Transportation. The U.S. Department of Transportation has made it clear that it will not authorize medical marijuana to be a valid medical explanation for a positive drug test result.
Though Nevada legalized recreational marijuana usage a year ago, employers in the Silver State remain free to enforce policies and take disciplinary action against employees violating those policies through recreational use of marijuana.
“Recreational is easy,” Hall said. “Our state luckily makes it very clear that for recreational use, an employer can still have a policy that restricts actions or conduct.”
Since marijuana remains illegal under federal law, this begs the question whether off-duty marijuana use is lawful.
Thus far, no Nevada cases have considered or decided this issue.
The Colorado Supreme Court, however, decided a key case on the matter last year, Hall said. The case involved a quadriplegic employee who used medical marijuana during non-working hours to treat painful muscle spasms; the employee was fired after a random drug test showed a positive result.
He sued his employer, Dish Network, which had a zero tolerance drug policy, alleging that his termination violated the Colorado lawful activities statute.
The court disagreed, ruling that his termination did not violate the statute because marijuana use was unlawful under federal law.
Where would the Nevada Supreme Court rule in such a case?
“There’s no way to know,” Hall shrugged. “I think the biggest thing is that it’s time to get decision-makers involved in this. Because HR are great at enforcing rules and doing what they’re supposed to do, but they’re often not the decision-makers. Someone with decision-making authority needs to look at this.”