“Times They Are a-Changin’”: Recent Developments Regarding Marijuana Use by Employees in Nevada

by Swen Prior

To quote Bob Dylan, “the times they are a-changin’.”¹ As employers know, marijuana laws and opinions regarding marijuana use for both medical and recreational purposes are rapidly changing. Marijuana remains a Schedule I controlled substance under the federal Controlled Substances Act (CSA); however, this has not stopped states from decriminalizing and expanding protections to employees who use marijuana.

Until recently, employers could, and regularly did, discipline (terminate employment of) employees for testing positive for marijuana use. In the past, courts consistently allowed employers to adhere to a “zero tolerance” drug policy because marijuana is still illegal under the CSA. As held by the Colorado Supreme Court in 2015, employers were generally free to terminate employees who failed a drug test.² Indeed, just last year, a Nevada court reached a similar decision and rejected an employee’s attempt to sue his employer because his application was rejected because he tested positive for medical marijuana use. 

Now, however, courts across the country are starting to change their position on when and how employers can discipline employees for using marijuana. For example, in July 2017, the Massachusetts Supreme Judicial Court held that an employee could sue her employer for disability discrimination under Massachusetts law when she was terminated for testing positive for medical marijuana.³ The employer made the same argument employers made in the past – that marijuana use is illegal under the CSA and therefore it was not required to accommodate its employee’s use. The court disagreed. 

A month later, the federal court for the district of Connecticut issued a similar decision.⁴ There, the court essentially ruled that the CSA does not preempt Connecticut law concerning marijuana use with regard to employment. Ultimately, the court found that the employer should have done more in an attempt to accommodate plaintiff’s use of medical marijuana.  

Indeed, just last February a Nevada state court refused to grant an employer’s motion to dismiss a complaint filed by a former employee that was terminated for testing positive for medical marijuana.⁵ Again, one of the arguments for dismissal was that marijuana is illegal under the CSA. The court disagreed and allowed the plaintiff to sue his former employer. This ruling is a U-turn from a decision issued just a few months ago on nearly identical claims.

So, in Nevada (and likely elsewhere) employers may want to take care when bringing any disciplinary action against employees who use marijuana. Indeed, Nevada employers are, of course, not required to accommodate the use of marijuana if doing so would pose an undue hardship or prevent the employee from fulfilling any of their job responsibilities. However, employers are required to “attempt to make reasonable accommodations for the medical needs of any employee who engages in the medical use of marijuana.”