Following closely on the heels of a similar law in New York City, effective January 1, 2020, it will be unlawful for Nevada employers to reject a job applicant who tests positive for cannabis on a pre-employment drug test. While there is debate as to whether some medical and recreational cannabis laws, including in Maine, allow an employer to take action based on off-duty or off-premises cannabis use, when it comes to job applicants, Nevada law could not be more clear.
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The Illinois General Assembly has been working on a marijuana legalization bill this session.  The Senate Bill would protect employer rights to ban marijuana and discipline employees for use.

Across the country, states are moving to legalize medical and recreational marijuana.  In states that legalize recreational marijuana, employers and drug testing services have seen significant increases in positivity rates for marijuana metabolites.  Wider marijuana use will require employers to take action to ensure safe work environments for their employees, especially in safety sensitive settings.  Drug policies must be updated and must address discrimination concerns.  To that end, we are closely monitoring new forms of discrimination claims from medical marijuana users and regarded-as disabled employees.  See our recent blog concerning a related Arizona court decision.
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An Arizona federal district court judge entered judgment against Walmart Inc. for terminating the employment of a woman who had been prescribed medical marijuana because it had not established through expert evidence that the employee was impaired by marijuana at work despite high levels of marijuana in the results of her drug test.  Therefore, the

What a year it’s been in legalizing cannabis—from conservative states legalizing medical marijuana—to city ordinances imposing cannabis requirements. Changes in Cannabis laws are definitely creating a buzz for SF and Utah employers.

Background Checks SF. San Francisco, known for its forward progress in the cannabis space, has done it again. Effective October 1, 2018,

In the stoner-classic, “Cheech and Chong’s Next Movie,” Cheech Marin laments: “I’m gonna be late for work again. That’s the fifth time this week, and it’s only Tuesday, man.” While Cheech’s calculations remain a mystery, the prospect of employees coming to work while under the influence of marijuana presents a concerning picture for employers.  In an era where medical marijuana is legal in certain circumstances under the state laws of New York, New Jersey, and Connecticut – and with Vermont on the verge of making marijuana entirely legal – it is critical for employers to educate themselves on their rights and obligations with regard to these laws. This article provides employers in the tristate area with practical guidance on the medical marijuana laws of New York, New Jersey, and Connecticut. 
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With Pennsylvania joining in last month, nearly half the country has laws permitting state residents to use marijuana for medical purposes, and a handful even permit recreational use. California led the movement when it passed the so-called “Compassionate Use Act” in 1996. At present, use and distribution of marijuana remain federal offenses, although unenforced per current U.S. Department of Justice policy.

The increasing accessibility of marijuana over the years, as well as its acceptance into mainstream culture, have led to serious misconceptions regarding its permissibility in the workplace. We offer here a few reminders to help clear up this this sometimes “hazy” area of California law.
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Almost a majority of the states allow medical marijuana, so a common question is how does the use of medical marijuana affect the rights under other laws, and in particular, the Family Medical Leave Act (“FMLA”) and the Americans With Disabilities Act (“ADA”)?

The FMLA allows employees who have been employed for at least one year with their employer, and worked 1250 hours in the last year for that employer, to take up to 12 weeks of unpaid leave, provided they work at a location where there are at least 50 employees within 75 miles of the location. The 12 weeks can be for family leave – birth or adoption of a child, or medical leave – if the employee is sick or they need to care for certain sick family members.  The ADA prohibits employers from discriminating against those who are disabled, and those associated with a disabled person.  In addition, the ADA requires employers to provide reasonable accommodations to the disabled employee so the employee can perform the essential duties of their job. While these two laws give employees certain rights, one must also remember that marijuana use is illegal throughout the United States under federal law, even in those states where its use is legal under state law.
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More and more cities and states are legalizing the use of marijuana for medical and recreational use.  The good news is that means in those jurisdictions the local and state police will not arrest you if your use conforms to the local/state law-medical use states require a prescription and recreational use laws usually limit the amount of marijuana one can possess.  In addition, federal prosecutors, at least under the current administration, will not prosecute you for use which is legal under state and local laws.

Now the bad news.  Marijuana use is still illegal under federal law, 21 U.S.C. § 801 et seq., since it is listed as a schedule 1 controlled substance.  That means its use is not protected by the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., (“ADA”) because the ADA does not protect the current use of an illegal drug.  Moreover, most employees are at-will employees, so they can be fired for good cause, bad cause, or no cause.  Thus, if an employer wants to fire employees who use marijuana away from work, it is likely that the employer can legally do so.
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