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Thoran Towler: ‘High’ expectations for employers

Thoran Towler
For the Nevada Appeal

Nevada is one of 23 states with laws protecting the medical use of marijuana. Although the laws vary widely in each of the 23 states, the standard rule is individuals with qualifying medical conditions may legally use marijuana. The big question for employers is whether an employee can be terminated for medical marijuana use. Many employers have drug-free workplace policies that prohibit the use of illegal drugs both on and off the clock. Regardless of Nevada’s position on medical marijuana, marijuana use is still illegal according to federal law. Nevada employers may be at a loss on how to handle violations of their drug-free workplace policies by employees who carry “medicinal marijuana cards.”

Whether a Nevada employer can discipline or terminate an employee for prescription medical marijuana use remains a question with no clear answer. In Arizona, there’s a law that expressly prohibits employers from firing an employee for a positive marijuana drug test if that employee holds a valid marijuana card. This law also prohibits employers from refusing to hire a job applicant because the applicant is authorized to use medical marijuana.

On the other hand, both Oregon and Washington have case law that allows employers to implement zero-tolerance drug use policies, regardless of whether the employee’s use is “legal.”

The Oregon Supreme Court issued its ruling in the 2010 case of Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries. In Emerald, the court confirmed employers are not required to accommodate use of medical marijuana under the Oregon Medical Marijuana Act. The Oregon court specifically held an employer was justified in terminating an employee even though he notified the employer of his medical marijuana use. Following termination, the employee sued the employer. The court ruled in favor of the employer because the employee’s marijuana use was in violation of the United States Controlled Substances Act. The court held the federal law trumped the protections provided by the employee’s medical marijuana card.

In 2011 the Washington Supreme Court held in Roe v. Teletech Customer Care Management, LLC, a valid state issued medical marijuana card doesn’t protect an employee from discharge for marijuana use. The court held Washington’s medical marijuana act was not passed to give employees the power to violate their employer’s drug-free workplace policies. The court noted employers may continue to hold their employees accountable under their drug-free policies, regardless of whether they had a medical marijuana card.

As you can see, there are different rules on this issue in neighboring states. Without a clear case in Nevada applying the medical marijuana issue to the employment relationship, employers will need to look at each case individually and determine the best course of action. Employers will need to consider employment law trends, changes to federal law/policy, and remain current on any changes to Nevada law.

Thoran Towler practices labor and employment law at Allison MacKenzie Law Firm in Carson City. Prior to joining Allison MacKenzie, Thoran served as the State of Nevada Labor Commissioner from 2011 through 2014. Thoran can be reached by email at ttowler@allisonmackenzie.com or by calling him at 775-687-0202.