Medical Marijuana in The Workplace
More than ten years ago the voters of Nevada voted to amend the State Constitution to allow the use of medical marijuana by patients with certain chronic or debilitating medical conditions. In April, 2014 the state legislature enacted statutes that provide for the establishment of facilities for the legal cultivation, testing and sale of medical marijuana, edible marijuana products and marijuana infused products to patients who have been issued a registry identification card by the Division of Public and Behavioral Health of the Department of Health and Human Services. The statute also provides for an exemption from state prosecution for the use and or possession of marijuana in limited amounts as set forth in the statute, by holders of registry identification cards. However, the statute does not require an employer to allow the medical use of marijuana in the workplace.
According to the Medical Marijuana Statute (NRS 453A.800), an employer is not required to allow the medical use of marijuana in the workplace. An employer still has the right to create its own workplace-conduct rules, and can prohibit medical marijuana users from using marijuana or consuming ingestible marijuana products while on company property.
The statute also states that an employer is not required to modify the job or working conditions of a person who engages in the medical uses of marijuana, if the job and working conditions are based upon the reasonable business purposes of the employer. However, employers must attempt to make reasonable accommodations for the medical needs of an employee who holds a valid registry identification card and uses marijuana for medical purposes, provided that such reasonable accommodation would not (1) pose a threat of harm or danger to persons or property, (2) impose an undue hardship on the employer or (3) prohibit the employee from fulfilling his or her job responsibilities.
What are reasonable accommodations?
While Nevada’s statute may require an employer to attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana under certain conditions, what constitutes reasonable accommodations?
The term “Reasonable Accommodation” may include; job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters and other similar accommodations.
But remember, the employer is only required to make reasonable accommodations so long as it does not cause an undue hardship on the employer.
What is an Undue Hardship?
Does accommodating the use of medical marijuana by an employee impose an undue hardship on the employer? It does, if it involves significant difficulty or expense, when considered in light of several factors, such as the overall financial resources, size, number of employees, and type and location of employer’s facilities; the employer’s type of operation, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employee; and the accommodation’s impact on the facility’s operation. Clearly, this is an area that can only be assessed by the employer.
Most employers have a reasonable business purpose for creating a drug free workplace. One consideration is whether or not the use of medical marijuana by an employee poses a threat of harm or danger to persons or property? Does it prevent the employee from fulfilling his or her job responsibilities? Does the employee operate heavy equipment or operate machinery or engage in any operations that if the employee were under the influence, could result in harm to another person or property? On the other hand, if the employee has been using medical marijuana for a long period of time and there have been no problems with the employee’s job performance, it is unlikely that the employer could argue that the use of Medical Marijuana impairs the employee’s ability to fulfill their job responsibilities. There are no easy answers.
Does the employer rely on Federal Contracts?
Another consideration is whether a major portion of the employer’s business is derived from federal contracts. If so, the employer is obligated to comply with the Drug Free Workplace Act of 1988, which requires the employer to prohibit employees from engaging in the unlawful manufacture, distribution, dispensing, possession or use of any controlled substance. Marijuana is still designated as a Schedule 1 controlled substance under the federal Controlled Substance Act. If an employer makes an exception to its policy regarding a drug-free workplace, its government contracts could be in jeopardy, thus the employer could argue that any accommodation for a medical marijuana patient could cause an undue hardship.
Prospective Employees and Drug Testing:
Most private employers are not required to test for drug use. There are exceptions to this rule for transportation and other safety-sensitive industries that are regulated by certain federal agencies such as the Federal Highway Administration or the Federal Aviation Administration. Those businesses in the trucking industry, aviation, or mass transit, as well as those who contract with the Department of Defense or NASA may be required to test at least some employees for drug use. The Department of Transportation has issued guidelines that prohibit the use of medical marijuana for transportation workers in safety-sensitive jobs including pilots, school bus drivers, truck drivers, subway operators, ship captains, and armed security.
But, what about those private businesses that are not government related industry? Why would they want to require their employees to take drug tests? One reason might be that the business receives a discount on their worker’s compensation insurance premiums. Another reason would be to avoid legal liability. Depending on the type of business, drug use may violate OSHA and state occupational safety laws. An additional reason for drug testing would be to maintain productivity and save money. According to one government report, drug and alcohol use takes a toll on the American workplace. Problems relating to drug and alcohol abuse cost $80 billion in lost productivity in a single year. Employees who use drugs are three times more likely to be late to work, more than three-and-a-half times more likely to be involved in a workplace accident, and five times more likely to file a workers’ compensation claim.
The Nevada medical marijuana statute has not yet been subject to any court interpretation. However, courts in other states with legalized medical marijuana, such as California, Washington, Montana and Oregon have consistently found that employers may continue to enforce pre-employment drug-testing policies that screen for the use of drugs, including marijuana. Such courts have also upheld the employer’s right to terminate a current employee who tests positive for use of medical marijuana, whether or not the employee was working while under the influence of marijuana.
Are Federal Disability Laws Applicable?
In some instances, people have attempted to argue that medical marijuana patients are being discriminated against because of their medical condition constitutes a disability under state and federal law. Thus far, this has not been proven to be the case in Nevada or our surrounding states.
The “Americans with Disabilities Act of 1990” (the “ADA”)(42 USC Sec. 12112) requires employers to provide reasonable accommodations to employees with disabilities, unless doing so would cause undue hardship. However, the ADA does not require an accommodation for the use of drugs that are illegal under federal law. In fact, the ADA’s definition of “qualified individual” specifically excludes an individual currently engaged in the use of an illegal drug. Remember, marijuana use is still illegal under federal law.
But, under the ADA there’s an exception to its definition of “illegal drugs use” that excludes drugs taken under supervision of a physician. So, one would think that since the statute requires a prescription from a doctor, it must meet the exclusion to the ADA definition, right? However, that is not the case. In a recent Ninth Circuit Court of Appeals decision the court ruled that there was no indication in the ADA that Congress sought to exclude from the definition the use of a controlled substance that was lawful under state law but unlawful under federal law and to hold otherwise would undermine the Controlled Substance Act’s clear statement that marijuana is an unlawful controlled substance that has no currently accepted medical use in the United States.
As long as marijuana is listed as a Schedule 1 controlled substance under federal law, it is unlikely that courts will apply the ADA to cases where employers refuse to make accommodations for the medical use of marijuana and employers will have discretion to terminate employees for being at work while under the influence of marijuana if the other provisions of the statute have been adhered to.
If you are an employee or an employer faced with the situation of how to address the use of medical marijuana in the work environment, having the right attorney to represent you is paramount. The Wright Law Group is a Martindale Hubble AV rated law firm and is well equipped to assist you. Please call us at 702-405-0001 to schedule a consultation.