Pubdate: Sat, 17 May 2014
Source: Reno Gazette-Journal (NV)
Copyright: 2014 Reno Gazette-Journal
Contact: http://www.rgj.com/letters
Website: http://www.rgj.com/
Details: http://www.mapinc.org/media/363
Author: Ray Hagar

EMPLOYERS' DILEMMA: WHAT TO DO ABOUT EMPLOYEES WHO USE MEDICAL
POT?

Nevada employers are facing a dilemma over how to treat employees who
use medical marijuana - a drug that's still considered illegal under
federal law and is not permitted by much of corporate America.

Meanwhile, Nevada law requires employers to consider "reasonable
accommodations" for those who have a medical marijuana card and test
positive for pot in an employment drug test.

"Nevada employers are really in a pickle," said Karyn Jensen of the
Human Resource Connection in Reno.

"There is a conflict for employers with what the federal law is
telling them and what the state law is telling them what to do,"
Jensen said. "So from an HR perspective, this is a nightmare, to be
completely candid. It's a nightmare."

For starters, the federal Americans with Disabilities Act says if
medical marijuana users test positive for pot on the job, they can be
fired. Job applicants with medical marijuana cards who test positive
can be refused employment.

Nevada law does have exceptions for marijuana use, especially if an
employees' marijuana use can compromise job safety. A truck driver,
for instance, would not be allowed to use medical marijuana for
obvious safety concerns.

Employers who follow one law could also end up breaking
another.

"Here is the problem: Under federal law, medical marijuana is a
controlled substance and is basically not allowed," said Bob Sinnett
of Sinnett Consulting Services, who deal with employment laws and
regulations. "So if I terminate that employee because there is no
legitimate use of marijuana under federal law, I could be sued in
state court because Nevada requires that you do a reasonable
accommodation."

"So it puts employers in a bind," Sinnett said. "What law are they
going to follow, state law or federal law?"

Jensen encourages her team, when they speak to employers, to stress
that every incident should be considered individually.

"Until the lawsuits start flying and then there's case law, or the
federal and state (jurisdictions) get on same page, we don't have any
choice but take it on a case-by-case basis," Jensen said.

Courts have tended to side with employers' right to terminate workers
who test positive for medical marijuana, according to a memo sent to
Sinnett Consulting clients.

It can take users three to four weeks to "get clean" after using
marijuana, employment consultants said.

"In the last few years, there have been several legal challenges by
employers to medical marijuana laws in other states," Tonica Lathrop,
director of operations for Sinnett Consulting, wrote to clients. "In
these cases, district and appellate courts have consistently ruled in
favor of the employer's right to terminate employees testing positive
for marijuana regardless of whether they had a state-issued medical
marijuana card.

"These courts recognized that states cannot enact laws that are in
direct conflict with federal law," Lathrop wrote. "What is uncertain
is how the new state law requiring reasonable accommodations will be
viewed in light of federal law."

Still, the email did not ease employers' concerns, Lathrop
said.

"We get several calls a day asking should we follow the federal law or
should we follow the state law," she said. "Ultimately, it is up to
the employer as to which way they go."

The federal government's silence on the discrepancies between state
and federal laws on marijuana is at the root of the problem, Sinnett
said.

"Clearly, the federal government has to give the state some guidance
on this issue," he said. "They (federal officials) are leaving all the
states hanging, and unfortunately, when they are left hanging, people
make decisions in vacuums. And those decisions could come back and
bite them, legally."  
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MAP posted-by: Jo-D