Guest column: Marijuana law creates hazy situation for employers

Twenty-three states, including Nevada, have passed laws permitting marijuana for medical purposes. Twenty others have ballot measures pending to do the same this year. Four — Colorado, Oregon, Washington and Alaska — and the District of Columbia have legalized marijuana for recreational purposes.

As Nevada begins issuing medical marijuana registration cards, employers should consider and plan to tackle some potentially sticky issues.

Nevada’s medical marijuana law prohibits discrimination against employees with a valid registration card and requires employers to consider reasonable accommodations for lawful use of the drug. However, employers are not required to permit marijuana use in the workplace and are not required to modify job requirements or working conditions to accommodate an employee with a marijuana registration card. As it stands, employers need only consider accommodations that enable employees to fulfill their existing job responsibilities and which pose no danger to people or property.

That sounds good on paper, but what about in practice?

Detecting whether an employee is impaired by marijuana is not as easy as it sounds. There are no consensus standards defining impairment. The technology for accurately measuring the drug’s active ingredient is largely developmental. How can an employer know whether an employee is impaired from lawful use at home versus unlawful use at work?

In fact, detecting whether an employee is using marijuana at work is, itself, an increasingly difficult proposition — marijuana-infused candies, pastries, granola bars, soft drinks, butters and lotions are difficult to distinguish from any other food or drink.

Given these challenges, many employers are confused. Should they revise existing workplace drug policies or continue using “zero tolerance” policies to screen out job applicants and employees who fail drug tests? The answer may vary for each employer.

It’s important to remember that under federal law, marijuana is illegal. Businesses operating under federal contracts or funding, or dependent on federal licensing or regulation, may be required to maintain a drug-free workplace. Following state law can violate federal law.

Every employer has a legal obligation and right to provide a safe work environment. Accommodating medical or recreational marijuana without the means to effectively detect and prevent impairment puts employers in a serious bind. Every court to address the issue has cited marijuana’s status under federal law to uphold employer decisions based on an employee’s failed drug test for marijuana.

Key features of any sound policy should clearly define what is permissible and require testing upon reasonable suspicion of impairment, which should be broadly defined.

Tags: The Sunday
Business

Whit Selert is of counsel at the Las Vegas office of Fisher & Phillips.

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