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