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Dear POOL/PACT HR,
I heard the federal government is decriminalizing marijuana. Does that mean I have to
let employees smoke pot on the job?
Signed,
Reefer Madness
__________________________
Dear Reefer,
Yes, it’s true that the Department of Justice has issued a Notice of Proposed
Rulemaking initiating a formal rulemaking process to consider reclassifying marijuana
from a Schedule I drug (e.g., heroin, LSD) to a Schedule III drug (e.g., ketamine, Tylenol with codeine) under the Controlled Substances Act (CSA). Unlike Schedule I drugs
which have no currently accepted medical use and a high potential for abuse,
Schedule III drugs have accepted medical uses with a moderate to low potential for physical or psychological dependence (but do require a valid prescription from a licensed health care provider to be legally obtained and used).
With that said, we could be months away from any changes being implemented. In fact, the proposed rule is subject to a public comment period and then a formal
administrative hearing will be conducted. After that process is completed, the Drug
Enforcement Administration will gather and consider information and views submitted by the public in order to make a determination about the appropriate schedule. This process could take up to a year.
But to be clear, even if it does get rescheduled, marijuana will still be a controlled
substance that is subject to federal rules and regulations. Furthermore, rescheduling
does not decriminalize marijuana or make it legal for recreational use on the federal
level.
So, what does that mean to Nevada public-sector employers?
Not much for now. Until a final rule is published, marijuana remains a schedule I
controlled substance. As such, employers will need to continue to restrict on-the-job
recreational use (like alcohol or any other prohibited substance or illegal drug) but may have to accommodate employees who have a valid prescription for medical marijuana.
As you are aware, Nevada has decriminalized both medical and recreational marijuana, and state law requires employers to accommodate medical marijuana use under certain circumstances. However, employers who receive federal funds are subject to the Drug- Free Workplace Act (DFWA) of 1988 and cannot allow any employee to have any level of Schedule I or II drugs in their system. As such, while these employers must consider accommodations for medical marijuana, it is likely that allowing medical marijuana use by an employee would result in an undue hardship for the employer as it cannot allow any employee to use a Schedule I or II drug under the DFWA. However, if marijuana is rescheduled to a Schedule III drug, the DFWA would no longer be a hurdle for employers, and accommodations for medical use might need to be implemented on a case-by-case basis.
But for now, nothing has changed, and employers should continue to enforce their Drug-and Alcohol-free Workplace policy.
POOL/PACT HR will continue to track the proposed rule and update Members as
needed. Please feel free to contact your HR Business Partner with any questions you
may have.
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