With a majority of states — 33 states plus Washington D.C., Puerto Rico, and Guam — in the country enacting laws permitting the use of marijuana for medical use, and a small, but growing number of states (11 to be exact) allowing recreational use of marijuana, it’s almost impossible to ignore the elephant in the room — especially for employers.

In the past, employers were able to rely on federal law, which states that marijuana is illegal under the Controlled Substances Act, in enforcing zero tolerance workplace drug policies. However, now that many states have legalized (or at least decriminalized) marijuana use for medical and/or recreational purposes, employers are faced with a quandary when it comes to their workplace drug policies.

Many states that have legalized marijuana for medical use have provided some level of protection — whether under disability law or employment law — making it difficult to enforce zero tolerance drug policies without fear of litigation. Nevada’s medical marijuana law requires employers to attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana.

There is currently no case law in Nevada on how this law may apply in practice or how far it will extend. However, we can look to other states with similar (but not the same) laws for a glimpse at where the tide may be flowing.

A recent Arizona case involving a big box retailer may be the most telling of where this issue is going. Whitmire v. Wal-Mart Stores, Inc. involves an Arizona medical marijuana user who was terminated following a post-accident drug test, which was positive for marijuana.

Carol Whitmire had been a medical marijuana user since 2013; using it before bed as a sleep aid and treatment for chronic pain. In 2016, she injured her wrist on the job, but did not seek medical treatment the same day. It was several days later, when she was experiencing swelling and pain, that she was sent for medical treatment and a post-accident drug test. When the test came back positive for marijuana, her employer, Wal-Mart, concluded that “upon reasonable belief, [her] positive test result for marijuana indicated that she was impaired by marijuana during her shift that same day,” and terminated her.

She brought suit alleging violations of Arizona’s Medical Marijuana Act. The court found that the law prevented employers from taking an adverse employment action based solely on the presence of marijuana in the employee’s system. In order to take an adverse employment action, the court said the employer would need to demonstrate that the employee was impaired at work. Proving impairment is a much higher bar than proving presence in system and nearly impossible without additional facts as there is currently no test for marijuana impairment.

On the other side, California (Ross v. Ragingwire Telecommunications), Colorado (Coats v. Dish Network), and Oregon (Emerald Steel Fabricators. BOLI) have all ruled in the employer’s favor regarding medical marijuana users and positive drug screens.

So what is an employer in Nevada to do?

Up until recently, protections for marijuana users have been limited to medical users, not recreational users. Those protections aren’t limitless. Possession, use, or impairment at work are still prohibited even under the most generous medical marijuana statutes. Nevada’s medical marijuana statute specifically states that employers are not required to allow medical use of marijuana in the workplace.

However, beginning in January 2020, Nevada will extend protections to all marijuana users — medical and recreational — when it comes to pre-employment drug testing. Assembly Bill 132 (AB132), which was passed during the 2019 Nevada Legislative Session and signed by Governor Steve Sisolak, makes it unlawful for an employer to fail or refuse to hire someone because a pre-employment drug screen came back positive for marijuana.

This prohibition is not without exceptions. The above does not apply if the prospective employee is applying for a position: (1) as a firefighter, (2) as an emergency medical technician (EMT), (3) that requires operation of a motor vehicle where state or federal law requires testing, or (4) that, in the determination of the employer, could adversely affect the safety of others.

Nevada employers who conduct pre-employment drug screens will need to review their policies and procedures as January approaches to make a decision on how best to proceed. Do they forgo pre-employment drug testing all together? Do they pre-employment drug test, but ignore a positive marijuana result if the position doesn’t fall into one of the above exemptions? Do they just drop marijuana from their pre-employment drug panel? Do they maintain a zero tolerance policy for pre-employment drug testing regardless?

Flexibility and adaptability is key in this changing area of the law. Being flexible will allow you to adapt as guidance from regulators and eventually the courts come out. This will allow you to remain compliant. Unless you are a federal contractor, a zero tolerance drug policy is not going to be a safety net.

As a benefit of NAE membership, member organizations have access to our Member Portal, which, among other great resources, has a sample drug and alcohol policy with the relevant state law in mind. We also make Fact Sheets on these new, difficult, or changing areas of the law available for download and use as quick reference guides.

NAE will continue to keep members updated on the latest developments in the law surrounding marijuana and drug testing. Make sure you are on our email list so you do not miss out.