Subtle Difference in Law: Legal Marijuana in the Workplace in Southwest
In the last several years Marijuana has been legalized in several states, either as Medical Marijuana or, more recently, Recreational Marijuana. Medical marijuana requires a valid medical reason of use; whereas Recreational Marijuana is similar to the use of alcohol.
A common question that has arisen regards the legality of marijuana use as related to the workplace and workplace rules.
In three southwestern states – California, Arizona, and Nevada –rules relating to the workplace are subtly different.
Citizens of California recently voted to legalize the recreational use of marijuana. Effective January 1, 2017 Californians can buy marijuana at dispensaries without a medical card. Almost immediately the question of marijuana and the workplace returned to the limelight.
From Lexology.com (May 02, 17):
Way back when, in 2008, the California Supreme Court held that employers need not accommodate an employee’s medicinal marijuana use. And it remains the practice for many employers to enforce drug use policies specifying that the employer has a zero tolerance toward working under the influence of drugs, including newly legalized substances such as THC (the active ingredient in marijuana). Unambiguous drug use policies will put even the most dazed and confused employees on clear notice that these “legalized” substances are not tolerated at the workplace. (1)
While the use of Marijuana in the workplace being banned is a common thread in all three states, California has the somewhat unique position in regards to random drug testing.
From Lexology.com (May 02, 17)
California employers may have a legitimate interest in enforcing a drug free workplace, but our Constitutional right to privacy generally protects against a random, suspicionless drug tests. Because an employer’s right to drug test relies on a balancing test (is the employee’s privacy interest outweighed by the employer’s interest in keeping the workplace safe and drug-free?), courts commonly look to whether there are less intrusive ways than random testing to protect the employer’s interest, and typically determine that there are. (2)
Arizona’s law is more cut and dry. As long as Marijuana is illegal under federal law it can be cause for dismissal in regards to the workplace.
From ABC15.com (Apr. 20, 17):
While medical marijuana may have come a long way in the state of Arizona, but when it comes to using it in the workplace, even those with prescriptions and state-issued cards are learning it's not enough to protect their jobs.
While it was legal in the state, the drug was still illegal according to federal law. He described it as a new and exciting area for lawyers. (3)
Nevada is one of the more recent states to legalize medical marijuana. As with the other two states Nevada does not allow the use or possession of marijuana in the workplace, but does require that employer’s make reasonable accommodation.
From AppliedBusinessNV.com (Apr. 26, 17):
Nevada’s medical marijuana law requires that employers attempt to make reasonable accommodations for the medical needs of an employee who holds a valid medical marijuana card, subject to certain limitations. Specifically, employers do not need to provide reasonable accommodations that would:
(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. (4)
Adam Almeida, President and CEO of CriminalBackgroundRecords.com states: “Confusion will continue to exist around the legalization of marijuana for recreational use and/or medical use. A best practice for all hiring managers and HR departments is to work with a well-qualified pre-employment background screening company.”
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