Marijuana and employment law: an ever-changing legal landscape (Thought Leaders)

The legalization of medical marijuana in 2001 and recreational marijuana in 2018 has created significant uncertainty for Nevada employers and employees alike regarding their respective rights and obligations in using marijuana and regulating its use.

Specifically, can employees who possess valid medical marijuana cards be terminated for positive drug tests? And what affect, if any, does the legalization of marijuana for recreational use have on an employer's ability to prohibit its use? One court in Las Vegas has been tasked with answering the former question, while the Nevada Legislature has attempted to bring clarity to the latter.

In order to understand the current legal landscape, employers should be aware of NRS Chapter 453A governing the medical use of marijuana in the State of Nevada.

The most significant provision for Nevada employers is NRS 453A.800, which requires employers to attempt to make “reasonable accommodation 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.

NRS 453A.800(3) (emphasis added). NRS 453A.800(2) also states that Nevada medical marijuana laws do not “require any employer to allow the medical use of marijuana in the workplace.”

However, NRS 453A.800 has created significant ambiguity for employers and employees because it does not authorize any administrative agency to enforce it, create a private cause of action for employees to enforce it, or identify the liability of an employer who violates it.

Moreover, the statute does not explain what steps an employer must take to reasonably accommodate an employee's medical marijuana use. Fortunately, the currently-pending Nellis v. Sunrise Hospital case may provide much needed clarity on this very murky area of the law.

On September 22, 2017, Scott Nellis, a registered nurse, filed suit against his former employer, Sunrise Hospital, alleging claims of wrongful discharge and violations of NRS Chapter 453A based on his termination following a positive drug test.

Years prior to his termination, Nellis was attacked by a patient at Sunrise Hospital and suffered from a fractured vertebra. As a result, Nellis applied for and obtained a medical marijuana card.

In February of 2017, Nellis was again attacked and injured by a patient while on duty. In the emergency room, Nellis provided a urine sample, which tested positive for the presence of marijuana. Sunrise Hospital then terminated Nellis on the basis that it suspected he was working while impaired in violation of hospital policy.

While the case is likely far from resolution, it is significant that Nellis' claims have survived the motion to dismiss filed by Sunrise Hospital. The case is currently set for trial on January 6, 2020 in Department 8 of the Eighth Judicial District Court in Las Vegas, Nevada. Employers should closely monitor this case, as its final decision will likely have significant ramifications for employer obligations and policies related to medical marijuana use.

The Nellis case also begs the question of whether employers can avoid issues with Chapter 453A by refusing to hire anyone who tests positive for marijuana in a pre-employment drug test, since Chapter 453A only applies to employees.

This issue is further complicated by the fact that the recreational use of marijuana has been legalized, and a person may test positive for marijuana days or even weeks after consumption. During the most recent legislative session, the Nevada Legislature clarified the issue of marijuana and pre-employment screening.

Assembly Bill 132, approved by Governor Sisolak on June 5, 2019, prohibits employers from “fail[ing] or refus[ing] to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.”

AB 132 does contain exceptions for prospective employees applying for positions as firefighters or emergency medical technicians and positions that are safety-sensitive or require an employee to operate a motor vehicle. In addition, the provisions of AB 132 do not apply “to the extent that they are inconsistent with the provisions of an employment contract or collective bargaining agreement” or federal law or “to a position of employment funded by a federal grant.”

Notably, AB 132 does not distinguish between medical and recreational marijuana users, meaning an individual does not need to hold a valid medical marijuana card to be protected by the new law. It is also important to note that AB 132 only applies to pre-employment screening.

Employers may still prohibit employees from engaging in recreational marijuana use and may terminate an employee should they test positive for the presence of marijuana.

While AB 132 does not become affective until January 1, 2020, employers should consult with qualified legal counsel to ensure the adoption of policies and practices that conform to the new law.

This article was written by Emilee N. Sutton, an associate attorney with Allison MacKenzie in Carson City, which sponsors this content.