Tag Archives: legalized marijuana

December 14, 2016

Working Through The Haze: What Legal Marijuana Means For Nevada Employers

By Dora Lane and Anthony Hall
One in eight adults in the United States smokes marijuana, according to a 2016 Gallup poll. That means about 13% of the adult population in this country smokes pot, nearly double the percentage that reported such use in Gallup’s 2013 survey. In fact, about 22 million Americans reported they had used marijuana in the past month, according to 2014 data collected by the Substance Abuse and Mental Health Services Administration.

It is unclear whether the increase in the number of Americans reporting they use marijuana is due to an actual increase in use of the drug, or if it simply represents an increase in the willingness of survey respondents to admit to using marijuana. What is clear, however, is that more states are legalizing marijuana for both medical and recreational use. This past November, nine states had marijuana initiatives on the ballot. Voters in four states – California, Maine, Massachusetts, and Nevada – passed recreational marijuana use while voters in four other states – Florida, Montana, North Dakota, and Arkansas – passed medical marijuana initiatives. The undeniable result is that marijuana is becoming more acceptable, and more marijuana-related issues are likely to arise in the workplace.

Nevada Legalizes Recreational Marijuana Use

In November 2016, Nevada voters approved a ballot question that legalizes the recreational use of marijuana by adults. The ballot measure amends the Nevada Revised Statutes to make it lawful for a person who is 21 years of age or older to purchase, possess, and consume up to one ounce of marijuana and to grow a limited number of marijuana plants for personal use. Questions have arisen how the legalization of marijuana will impact employers.

No Marijuana Use Or Possession At Work

Under the recently passed recreational marijuana initiative, public and private employers may maintain, enact, and enforce a workplace policy prohibiting or restricting actions or conduct otherwise permitted under the new law. In other words, although the initiative provides that marijuana may be consumed without criminal prosecution by the State of Nevada, it does not affect an employer’s right to implement policies prohibiting marijuana consumption or possession. Nevada employers may, therefore, prohibit the possession and use of recreational marijuana at work.

This provision is consistent with the state’s medical marijuana law which also does not require any employer to allow the use of medical marijuana in the workplace. Consequently, even though use of marijuana may be legal in the state, employers may restrict such use and possession on its premises and while employees are on duty. And, although not specifically stated, Nevada’s marijuana laws appear to allow employers to terminate or discipline employees who violate workplace policies that prohibit using, possessing, or being impaired by marijuana while at work.

So Must Employers Tolerate Off-Duty Marijuana Use, So Long as It Is Not Done While on Duty or on Company Premises?

The short answer in our opinion is generally no, with some caveats for medical marijuana users described below, but employees’ off-duty consumption raises some difficult practical issues. First, many employers have policies prohibiting employees from being “under the influence” or “impaired” by prohibited substances while at work. It is often challenging, however, to determine when an employee is “under the influence” or “impaired” while at work. If the employee is visibly affected or slow to react, impairment may be easier to demonstrate. However, not everyone experiences side effects from marijuana consumption and even if they do, the timeframe within which the side effects can be observed may vary by individual. Accordingly, employers who prohibit employees from working while being impaired or “under the influence” should not jump to conclusions that someone was “under the influence” just because their drug screen comes back positive for Tetrahydrocannabinol (THC).

Second, employers should be mindful of NRS 613.333, which makes it an unlawful employment practice for an employer to refuse to hire a prospective employee, or to discharge or discriminate against an employee because the employee engages in the lawful use of any product outside the premises of the employer during the employee’s nonworking hours, as long as the use does not adversely affect the employee’s ability to perform his or her job or the safety of other employees. Although the statute was initially enacted to protect tobacco smokers, the recent legalization of marijuana makes the statute also potentially applicable to marijuana users.

Unlike tobacco, however, marijuana remains illegal under federal law, which begs the question whether its off-duty use is “lawful.” Currently, no Nevada cases have considered or decided this issue, but a key case involving Colorado’s lawful activities statute, C.R.S. § 24-34-402.5, was decided by the Colorado Supreme Court last year. In that case, a quadriplegic employee who used medical marijuana during non-working hours to help control his pain was terminated after a random drug test showed a positive result for marijuana in his system. He sued his employer alleging that his termination violated the Colorado lawful activities statute. The Colorado Supreme Court ruled that his termination did not violate the statute because marijuana use was unlawful under federal law. Coats v. Dish Network, LLC, 350 P.3d 970 (Colo. 2015).

Even though the Colorado case is not binding on Nevada courts, its reliance on the illegality of marijuana under federal law may be persuasive. Still, it is unclear how a Nevada court would rule if asked to decide whether an employer violates the Nevada lawful product statute by terminating or disciplining an employee due to his or her off-duty marijuana use. The risk of such a claim should be considered when making adverse employment decisions involving positive marijuana drug tests or other marijuana-related issues. Employers should also be mindful of potential developments in federal law with respect to the legalization of marijuana. Such legalization will transform marijuana into a “lawful” product under both federal and state law, and the above analysis will change greatly.

Finally, an employee who is terminated for marijuana use may attempt to argue wrongful termination in violation of public policy, given the recent marijuana legalization. Because the Nevada Supreme Court has been traditionally conservative in creating new exceptions to the at-will employment doctrine and marijuana remains illegal under federal law, such claims do not bear high likelihood of success. As mentioned above, however, legalization of marijuana under federal law will substantially affect this analysis. Read more >>

August 29, 2013

DOJ Will Not Challenge State Marijuana Legalization Laws – New Federal Enforcement Policy Unlikely to Affect Colorado Employers

By Emily Hobbs-Wright

On August 29, 2013, the U.S. Department of Justice (DOJ) announced that it will not challenge the state ballot initiatives in Colorado and Washington that legalize the possession and use of small amounts of marijuana under state law. The DOJ makes clear, however, that marijuana remains an illegal drug under the federal Controlled Substances Act. This clarification means Colorado employers may still enforce their drug-free workplace policies and take appropriate action when an employee or applicant tests positive for marijuana.

DOJ Expects States to Enforce Strict Regulatory Schemes

In its August 29, 2013 Guidance Regarding Marijuana Enforcement, the DOJ identifies eight enforcement priorities for federal law enforcement and prosecutors, such as preventing distribution of marijuana to minors, preventing the diversion of marijuana from states where it is legal to other states, and preventing drugged driving and the exacerbation of other public health consequences of marijuana use. The DOJ states that it expects that states and local governments to not only establish, but also enforce robust controls in their marijuana regulatory schemes to meet its federal objectives. The guidance instructs federal prosecutors to review marijuana cases on an individual basis, weighing all available information and evidence but to no longer “consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department’s enforcement priorities . . .” The DOJ further stated that if states fail to develop or enforce a strict regulatory scheme and the stated harms result, federal prosecutors will step in to enforce federal marijuana priorities and may challenge the regulatory schemes in those states.

Courts in Colorado Uphold Employer Terminations for Employee Marijuana Use

In April 2013, the Colorado Court of Appeals ruled that terminating an employee who tested positive for marijuana following his off-duty, off-premises use of medical marijuana did not violate Colorado’s lawful activities statute. Coats v. Dish Network LLC, 2013 COA 62. Brandon Coats, a quadriplegic who obtained a license to use medical marijuana under Colorado’s Amendment 20, was fired for violating his employer’s drug policy after testing positive for marijuana. Coats asserted that he never used marijuana on his employer’s premises, was never under the influence of marijuana at work and never used marijuana outside the limits of his medical marijuana license. He sued his employer, Dish Network, alleging that his termination violated Colorado’s lawful off-duty activities statute, CRS § 24-34-402.5(1), which prohibits an employer from discharging an employee for engaging in “any lawful activity off the premises of the employer during nonworking hours.”

The Coats court looked to the plain meaning of the term “lawful” in the statute and decided that “for an activity to be ‘lawful’ in Colorado, it must be permitted by, and not contrary to, both state and federal law.” Because marijuana was, and remains, illegal under federal law, the court held that marijuana use is not a “lawful activity” under the Colorado lawful activities statute and therefore, the employer did not violate the statute when it terminated him for testing positive for marijuana.

Earlier this week, the federal district court in Colorado ruled that enforcement of a drug-free workplace policy is a lawful basis for an employer’s decision to terminate an employee who tests positive for marijuana, whether from medical or any other use. Curry v. MillerCoors, Inc., No. 12-cv-2471 (Order Granting Motion to Dismiss, D.Colo. Aug. 21, 2013). In granting the employer’s motion to dismiss, the federal court rejected all of the former employee’s claims related to his medical use of marijuana that resulted in a positive drug test and his termination under the employer’s drug policy. Significantly, the court dismissed his disability discrimination claim under Colorado’s anti-discrimination statute as a matter of law, finding that it was lawful for the employer to discharge the employee under its drug-free workplace policy despite the employee’s allegation that he was terminated because of using medical marijuana to treat disabling medical conditions. Judge John L. Kane wrote “anti-discrimination law does not extend so far as to shield a disabled employee from the implementation of his employer’s standard policies against employee misconduct.” In dismissing the employee’s claim for violation of Colorado’s lawful activities statute, Judge Kane relied on the Coats decision and similarly ruled that because marijuana use is illegal under federal law, the employee’s medical marijuana use was not a “lawful activity” under the statute.

DOJ’s Announcement Should Not Change Workplace Decisions

The DOJ’s announcement of relaxed marijuana enforcement in states that have legalized marijuana does not alter employers’ ability to enforce their drug-free workplace policies. On the contrary, because the DOJ reinforced that marijuana remains an illegal drug under federal law, the analysis used by courts in Colorado to uphold termination decisions based on positive drug tests should continue to apply. Employers should create or revise their drug policies to state that use of any drug that is illegal under state or federal law will violate the policy. Employers then should enforce their policies in a consistent and uniform manner, regardless of the legalization of marijuana use in Colorado.

Disclaimer:This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.

April 25, 2013

BUZZ KILL: Employee Legally Fired For Off-Duty Marijuana Use

By Emily Hobbs-Wright & Brad Williams

The Colorado Court of Appeals issued a precedent-setting decision today upholding an employee’s firing for off-duty marijuana use. Citing federal law, the court held that using pot during non-working hours is not “lawful activity” under the state’s lawful off-duty activity statute. The decision provides the first direct guidance on terminating workers for off-duty marijuana use since Amendment 64 legalized the drug’s use and possession last November.

The case involved a quadriplegic employee licensed to use pot under the state’s medical marijuana amendment. The company terminated his employment after he tested positive for drugs in violation of company policy. The terminated worker claimed that he used the drug within the limits of his license, had never smoked on his employer’s premises, and had never been under the drug’s influence at work.

In the lawsuit, the terminated worker claimed that the company’s actions violated Colorado’s lawful off-duty activity statute, which prohibits termination for any “lawful activity” conducted off an employer’s premises during nonworking hours. Before today, Colorado courts had never squarely addressed whether the statute prohibits termination for off-duty marijuana use, when it is permitted under Colorado law.

Invoking a dictionary definition of the term “lawful,” the Court of Appeals held that “for an activity to be ‘lawful’ in Colorado, it must be permitted by, and not contrary to, both state and federal law.” Because marijuana use remains illegal under federal law, termination for off-duty pot-smoking does not violate the statute. The court also noted that its interpretation maintained the “balance between employer and employee rights” reflected elsewhere in Colorado law.

The decision is hugely important for Colorado employers. Amendment 64, like the medical marijuana amendment before it, did not require employers to “permit or accommodate” pot use, and expressly permitted policies restricting such use. But before today, courts had never previously decided whether state or federal law defines “lawful activity” under the statute.

The decision may not be the final word. Further appeal to the Colorado Supreme Court is possible, and other legal theories based on disability and similar laws remain untested. But for now, the decision provides the best guidance yet on terminating marijuana users, suggesting that courts will protect employers’ rights to enforce drug policies notwithstanding Colorado’s legalization of marijuana. It further reinforces the importance of employers defining illegal drugs as those prohibited under both state and federal law in drug policies.

This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.