Marijuana for medical and recreational purposes is becoming legal in many states.

Despite changes to the law, some employees are learning that, while it might be legal in some states, their employers can still discipline or terminate them if they use marijuana.

Nevada recently became the first, and only, state to prohibit employers from refusing job applicants based on a failed drug test in which the applicant tests positive for marijuana, even if the use is recreational and not medical.

In 2016, Nevada legalized the purchase, possession and consumption of recreational marijuana for adults 21 or older.

Effective Jan. 1, 2020, it will be unlawful for Nevada employers to “fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.”

There are exceptions to the screening requirement for such positions as firefighters, EMTs or any position requiring the employee to operate a motor vehicle or where federal or state law requires that the employee submit to screening tests.

There is also a “catch all” caveat excepting situations “that, in the determination of the employer, could adversely affect the safety of others.”

In Virginia, marijuana use and possession remain illegal.

Virginia legislatures provided an “affirmative defense” to those users who register as patients, caregivers and pharmaceutical processors.

Earlier this year, Gov. Ralph Northam signed a bill expanding Virginia’s medical cannabis program, but generally marijuana use remains illegal. The bill simply expanded the products available for medical cannabis.

Other than Nevada, even where recreational use is legal, there remains no law that prohibits employers from disciplining or terminating an applicant or employee due to testing positive for marijuana.

Thus, unless an individual plans to work in Nevada, an applicant or employee who uses marijuana for recreational use and tests positive for this substance during any job-related process can generally be legally terminated, even if recreational use is legal in the state.

The more complicated issue arises when a person is using the substance for medical purposes.

The Americans with Disabilities Act does not require that an employer accommodate an individual’s use of marijuana, even for medical purposes, since the ADA excludes current illegal drug use from the law.

Under the federal Controlled Substances Act, marijuana remains a schedule 1 illegal substance.

Some states prohibit employers from disciplining or terminating an employee for use of medical marijuana.

Without these laws, courts have generally upheld employee termination for use of marijuana, even for medical purposes.

The supreme courts in California and Colorado have held that, because marijuana is illegal under federal law, employers cannot be liable for adverse employment actions resulting from marijuana use, even if used for medical purposes and it is legal pursuant to state law.

However, Massachusetts and Connecticut state courts left open the possibility that employees could take action against their employers where they suffer adverse employment actions due to legal marijuana use for medical purposes, and the employer cannot simply rely upon the ADA in refusing to accommodate the individuals.

The law in this area continues to evolve.

In general, without a specific state law that prohibits employers from taking adverse action against an individual legally using marijuana, employers are generally free to rely upon their universally applied drug policies at work.

Karen Michael is an attorney with Richmond-based KarenMichael PLC. She can be reached at kmichael@karenmichaelconsulting.com.

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