What to do about employees who use medical pot?
Nevada employers are facing a dilemma over how to treat employees who use medical marijuana — a drug that’s still considered illegal under federal law and is not permitted by much of corporate America.
Meanwhile, Nevada law requires employers to consider “reasonable accommodations” for those who have a medical marijuana card and test positive for pot in an employment drug test.
“Nevada employers are really in a pickle,” said Karyn Jensen of the Human Resource Connection in Reno.
“There is a conflict for employers with what the federal law is telling them and what the state law is telling them what to do,” Jensen said. “So from an HR perspective, this is a nightmare, to be completely candid. It’s a nightmare.”
For starters, the federal Americans with Disabilities Act says if medical marijuana users test positive for pot on the job, they can be fired. Job applicants with medical marijuana cards who test positive can be refused employment.
Nevada law does have exceptions for marijuana use, especially if an employees’ marijuana use can compromise job safety. A truck driver, for instance, would not be allowed to use medical marijuana for obvious safety concerns.
Employers who follow one law could also end up breaking another.
“Here is the problem: Under federal law, medical marijuana is a controlled substance and is basically not allowed,” said Bob Sinnett of Sinnett Consulting Services, who deal with employment laws and regulations. “So if I terminate that employee because there is no legitimate use of marijuana under federal law, I could be sued in state court because Nevada requires that you do a reasonable accommodation.”
“So it puts employers in a bind,” Sinnett said. “What law are they going to follow, state law or federal law?”
Jensen encourages her team, when they speak to employers, to stress that every incident should be considered individually.
“Until the lawsuits start flying and then there’s case law, or the federal and state (jurisdictions) get on same page, we don’t have any choice but take it on a case-by-case basis,” Jensen said.
Courts have tended to side with employers’ right to terminate workers who test positive for medical marijuana, according to a memo sent to Sinnett Consulting clients.
It can take users three to four weeks to “get clean” after using marijuana, employment consultants said.
“In the last few years, there have been several legal challenges by employers to medical marijuana laws in other states,” Tonica Lathrop, director of operations for Sinnett Consulting, wrote to clients. “In these cases, district and appellate courts have consistently ruled in favor of the employer’s right to terminate employees testing positive for marijuana regardless of whether they had a state-issued medical marijuana card.
“These courts recognized that states cannot enact laws that are in direct conflict with federal law,” Lathrop wrote. “What is uncertain is how the new state law requiring reasonable accommodations will be viewed in light of federal law.”
Still, the email did not ease employers’ concerns, Lathrop said.
“We get several calls a day asking should we follow the federal law or should we follow the state law,” she said. “Ultimately, it is up to the employer as to which way they go.”
The federal government’s silence on the discrepancies between state and federal laws on marijuana is at the root of the problem, Sinnett said.
“Clearly, the federal government has to give the state some guidance on this issue,” he said. “They (federal officials) are leaving all the states hanging, and unfortunately, when they are left hanging, people make decisions in vacuums. And those decisions could come back and bite them, legally.”