Will legal pot throw you into a kettle of litigation?

The legalization of marijuana in Nevada creates murky waters for Nevada’s businesses.  The sale and use of marijuana remains illegal under federal law.  The Controlled Substances Act, so long as it remains unchanged by Congress, will keep waters murky for such issues as whether you can enforce a “drug-free” workplace policy; whether you employees can claim that you have violated the Americans With Disabilities Act (ADA); and the extent to which you can get sued if an employee under the influence of marijuana injures another employee or member of the public.

Many business have drug-free workplace policies.  Some employers have questioned whether they can continue to maintain these policies or if they have become illegal because medical marijuana is now legal.  Although the Nevada courts have not yet ruled on this issue, courts in other states that have legal marijuana have ruled that an employer maintains the right to terminate an employee who violates the company’s drug policy.  The primary reason for the court’s ruling is because marijuana remains illegal under federal law.  If Congress were to change the Controlled Substances Act, you may see that employers would not be able to enforce their drug-free policies.  If you have any questions about and of your employment policies, please reach out to Gordon Law.

Even if your policies are enforceable, you may still be the target of an employee’s claim of violation of the the Americans with Disabilities Act.  The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in employment, transportation, public accommodation, communications, and governmental activities.  The term “disability” means, a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.  If an employee is using marijuana to treat a disability as defined by the ADA, and is discriminated for so doing, the employee may have the ability to bring a claim against his/her employer for violation of the ADA. Since the ADA is governed by federal law, for the time being, a court may be more favorable to the employer in such a claim.  A change in federal law may change that favor as well.

Finally, and of perhaps the greatest concern, is if an employee who is under the influence of marijuana injures another employee or a member of the public.  Under the Occupational Safety and Health Administration (OSHA), an employer is required to provide their employees with a place of employment that is “free from recognizable hazards that are causing or likely to cause death or serious harm to employees.”  If one employee injures another while under the influence of marijuana, and particularly if the employer is aware of the employee’s marijuana use, then the employer may face liability for the negligent hiring and/or retention of the marijuana user.  Similarly, if a member of the public is injured as a result of any action or inaction of the marijuana-using employee, the employer may face substantial damages.  Particularly concerning is whether the employer’s insurance would cover a claim for such an injury because the possession and use of marijuana remains illegal under federal law.  If there is no insurance coverage, the costs to the business may be catastrophic.

Please contact Gordon Law if you would like to discuss any business concerns you may have.

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