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Marijuana Testing In the Era of Legalized Use

Marijuana Testing In the Era of Legalized Use

Nevada has allowed medical use of marijuana since 2008, and in January 2017 it became the fifth state in the nation to legalize recreational use when the Regulation and Taxation of Marijuana Act (the “RTMA”), NRS 453D.010 et seq., went into effect. Legalization has raised questions among employers and workers in the state regarding whether workplace drug screening programs should continue to test for marijuana use.

Nevada does not prohibit testing for recreational marijuana use

As a legal matter, the RTMA only eliminates criminal penalties for recreational marijuana use. Nevada employers are free to continue to screen employees for drug use, including marijuana. The RTMA explicitly allows private and public employers to restrict their employees’ recreational use of marijuana. NRS 453D.100(2)(a). Among other things, this means that an employer can prohibit employees from possessing or using marijuana at work. Although some employers may conclude that the legalization of recreational use creates a problem for employee retention or recruitment, that is not a legal question per se.

To avoid unfairness and potentially unlawful discriminatory actions, Nevada employers need to have clear drug and alcohol policies that are uniformly enforced. Marijuana use raises challenges for employers in this regard. Some users show little outward sign of being under the influence. And recreational use during off hours can leave detectable amounts of Tetrahydrocannabinol (THC) in an employee’s body for a long period of time, even though the employee is no longer meaningfully impaired.

An open question is whether the illegality of marijuana under federal law gives employers greater leeway to use a positive marijuana test to take adverse employment action against an employee who uses recreationally. NRS 613.333 prohibits employers from discriminating against employees for their legal, off-work activities. Whether the federal ban on marijuana wipes out this statute’s protection for recreational marijuana use remains to be seen.

Employers can regulate medical marijuana use as well, with exceptions

Under Nevada’s medical marijuana statute, NRS 453A.800, employers are permitted to regulate even medical use in the workplace, including possession. However, a Nevada employer is required to make reasonable accommodations for an employee who uses medical marijuana and has a valid state medical marijuana registry card, provided the accommodations 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.” Id. Like other “reasonable accommodation” laws, the statute’s ambiguity poses compliance challenges for employers. While an employer might not be able to terminate an employee for off-work medical marijuana use, it could still potentially take disciplinary action if the employee uses marijuana during work hours against a clear company policy.

Navigating the evolving legal landscape

At GGRM we are keeping a close eye on the legal issues surrounding marijuana use and employment. The intersection of federal law, protections for medical use, and increasing recreational use creates potential for thorny legal problems. If you would like to speak to an attorney about how Nevada’s marijuana laws affect you or your company, call us at 702-388-4476, or request a consultation through our website.