Stoned employees. Positive drug tests. Nevada employers don’t need to accommodate employees who use medical marijuana, right? Not exactly. As of April 1, 2014, employers have an obligation in certain circumstances to make reasonable accommodations for the medical needs of an employee who holds a valid medical marijuana registry card. Last year’s Senate Bill 374 amended Nevada’s existing medical marijuana law in numerous ways that significantly affect businesses with Nevada employees.
Nevada Employers May Prohibit Marijuana Use in the Workplace
Senate Bill 374 amended section 453A.800 of the Nevada Revised Statutes to clarify how the use of medical marijuana should be addressed in the workplace. Before the amendment, the statute stated that the medical marijuana law does not require any employer to accommodate the medical use of marijuana in the workplace. SB 374 revised this provision to read that the law does not require any employer to allow the medical use of marijuana in the workplace.
This change results in a greater restriction on employers. It essentially means that employers do not need to permit employees with valid medical marijuana cards to smoke marijuana or eat ingestible marijuana products on company premises or while working. Without specifically saying so, this provision appears to allow employers to terminate or discipline employees who use marijuana in the workplace, even if the employee is using marijuana legally under Nevada’s medical marijuana law.
But what about employees who legally use marijuana for medical reasons just before coming to work? What if an employee does not use marijuana at work but tests positive for cannabis in a work-related drug test? The parameters of how employers should address these issues has become murkier in Nevada, thanks to a new obligation on employers to make reasonable accommodations for the medical use of marijuana in certain circumstances.
Nevada’s Marijuana Workplace Accommodation Requirement
Senate Bill 374 also amended the medical marijuana law to state that an employer is not required to modify the job or working conditions of a person who engages in the medical use of marijuana when the job requirements or working conditions at issue “are based upon the reasonable business purposes of the employer .…” However, the statute goes on to require that 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:
- Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or
- Prohibit the employee from fulfilling any and all of his or her job responsibilities.
Employers are familiar with the concept of reasonable accommodations under the Americans with Disabilities Act (ADA). It is possible that the undue hardship exception under Nevada’s medical marijuana law will require an analysis of the same or similar factors that are analyzed under the ADA’s undue hardship exception. Such factors include, but are not necessarily limited to:
- the nature and cost of the accommodation needed;
- the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
- the overall financial resources, size, number of employees, and type and location of the employer’s facilities (if the facility involved in the reasonable accommodation is part of a larger entity);
- 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 employer; and
- the accommodation’s impact on the facility’s operation.
It is unclear, however, whether the “threat of harm or danger to persons or property” is the same as the ADA’s “direct threat” defense. In addition, Nevada’s exception to making a reasonable accommodation because it would prohibit the employee from fulfilling “any or all of his or her job responsibilities” is different from the ADA’s “essential job functions” requirement. It remains to be seen how this reasonable accommodation requirement will play out in practice and in the courts.
Compliance Steps for Employers
To comply with the newly effective law, Nevada employers should review their policies and practices related to drug testing and medical marijuana use. On-duty and on-site marijuana use may be prohibited but off-duty use pursuant to a valid medical marijuana registry card requires additional analysis before an employer should take an adverse employment action. Consider whether you need to implement an interactive reasonable accommodation process to address employee use of medical marijuana outside the workplace. Be sure to train managers, supervisors and human resource professionals on this new reasonable accommodation obligation. Finally, stay abreast of this issue as we are likely to see some “failure to accommodate” cases being filed in the years ahead.