Three years after medical cannabis became legal, and nearly a year into the state’s legalized recreational market, Nevada legal experts say there is no clear guidance or protections for employees who use cannabis.
“Short answer is nobody knows,” said Robert Spretnak, a Las Vegas attorney. “Congress and the Nevada Legislature need to step in and give some guidance.”
A key question is whether Nevada employees can be legally terminated for using cannabis outside of the office. Like other states that have legalized cannabis use for adults, Nevada is navigating murky legal waters as the substance remains illegal on the federal level.
Medical cannabis, for instance, is often prescribed to treat mental health issues like anxiety disorders and Post-Traumatic Stress Disorder. Even when a person consumes cannabis at home, the substance can show up in his or her system for several weeks.
Employees who are terminated for failing a drug test have limited options with the state’s Equal Opportunity Employment Commission – even for those using cannabis to treat a disability.
“Because federal law generally supersedes state law, there can really be no expectation of a federally protected right under the ADA to smoke medicinal marijuana for a disability,” said Kara Jenkins, administrator of the Nevada Equal Rights Commission. “Therefore, an employer may prohibit its use even for medical purposes. NERC will take the complaint as a state-only case and address on a case-by-case basis. [The Equal Opportunity Employment Commission] won’t even consider as they are a federal body.”
Some lawyers are challenging the courts and filing wrongful termination suits.
Christian Gabroy, an employment law attorney in Las Vegas, said it’s a case of fairness.
“This is a clear-cut violation of the lawful use statute,” he said. “You can’t be impaired at work. However, if you’re not impaired but it’s just in your system, you can’t be terminated for that.”
Gabroy said he would make this argument for employers who refuse to hire applicants if they failed a drug screening that found marijuana use. “It’s only a matter of time before this gets clarified,” he said.
In one of Gabroy’s recent cases, a Las Vegas hospital fired his client, Scott Nellis, after he tested positive for cannabis. Nellis had obtained a medical marijuana card after an injury.
In February, Nellis won a preliminary victory in the case. Gabroy said this case could have significant implications going forward. But would the ruling apply only to medical cannabis users?
“My position is you can’t be terminated for either [using medical or recreational marijuana],” Gabroy said.
Meanwhile, Spretnak said it’s still not clear what the case will mean in the long term. “That is one judge,” he said. “It hasn’t been tested by the Nevada Supreme Court.”
Spretnak said it’s up to the state legislature, or more ideally Congress, to examine the rights of employees who use cannabis.
Several bills related to cannabis and employment have been proposed in the Nevada Legislature, but those efforts have fallen flat. Spretnak said state lawmakers should have addressed the issue sooner.
“It’s a disgrace,” he said. “[The legislature] has known for several years this issue was coming. They’ve abandoned their legislative duty to straighten it out.”