Employers in the construction industry, particularly multi-state operators, may face challenges with new legislation in Nevada and a new case interpreting Arizona’s medical marijuana law.

New Nevada Legislation

Effective January 1, 2020, employers in Nevada will no longer be able to reject applicants for employment who test positive for marijuana in a post-job offer drug screen. The Nevada law, known as Assembly Bill No. 132, was signed into law on June 5, 2019. The new law provides an exemption for employers who screen applicants seeking positions that are safety-sensitive. The Bill specifies that “safety-sensitive” positions include: firefighters; emergency medical technicians; employees that operate a motor vehicle (for which federal or state law mandates the employee submit to screening tests); and a broad category including employees that “could adversely affect the safety of others.” The contours of what jobs are safety-sensitive will likely be fleshed out in future litigation. In general, ironworkers and heavy equipment operators and most employees working day-to-day on an active construction jobsite are likely in safety-sensitive positions. But office-based workers may not be deemed to hold safety-sensitive positions.

Additionally, employers can still test employees for drugs post-accident, under a random testing program, and if the employer has a reasonable suspicion of an employee being under the influence. Employees cannot use marijuana on the job or work under the influence. Nevertheless, the new Nevada law further evidences the ongoing state-by-state expanding tolerance of marijuana use. This evolution is occurring while federal law remains unchanged (it is a criminal offense under federal law to manufacture, distribute, dispense or possess marijuana, even where state law authorizes its use and despite the federal government’s current position on enforcement). As such, the new law may not impact or apply to federal contracts if drug testing is required under the contract. In general, the new law does not alter parties’ obligations under existing collective bargaining agreements, but depending on the provisions in the labor contracts, some pre-employment testing provisions in construction industry labor contracts may need to be revised.

New Arizona Case

Can an Arizona employer terminate the employment of a medical marijuana card holder who tests positive after a work-related injury? While this case arose outside the construction setting, it provides some important guidance on Arizona’s medical marijuana laws. In Whitmire v. Wal-Mart Stores Inc., a Customer Service Supervisor sued her employer, Wal-Mart, for various employment law claims, including discrimination under the Arizona Medical Marijuana Act (“AMMA”). At the time the employee was hired, she signed an acknowledgement form confirming her receipt of Wal-Mart’s drug and alcohol policy, which stated that she could be terminated if a drug test evidenced any detectable amount of illegal substances.

After sustaining a work-related injury, the employee was given a drug test for which she tested positive for marijuana metabolites at the highest level the test could record. Even though she was a valid medical marijuana cardholder, her employment was terminated based on the positive drug test. As part of its defense, Wal-Mart’s Personnel Coordinator signed a declaration stating that, upon her reasonable belief, the high level of metabolites detected by the drug test indicated the employee was impaired during her shift that day.

The Whitmire court, however, called into question the employer’s decision and considered how Arizona’s Drug Testing of Employees Act (“DTEA”) comes into play in a medical marijuana case. That law provides employers immunity from liability for taking any adverse actions against employees who receive a positive drug test, or whom the employer reasonably believes have used, possessed or were impaired by drugs or alcohol while on the employer’s premises or during work hours. The employer’s good faith belief may be based on the results of a drug test. To avail themselves of immunity under the Act, employers must maintain a proper drug testing policy and a drug testing program that complies with the DTEA.

While the anti-discrimination provision of the AMMA, which prohibits adverse employment actions against valid medical marijuana card holders, and the employer immunity provision under the DTEA appear to be at odds, the Court in Whitmire v. Wal-Mart Stores Inc. reconciled the two statutes as follows:

• “An employer cannot be sued for firing a registered qualifying patient based on the employer’s good-faith belief that the employee was impaired by marijuana at work, where that belief is based on a drug test that sufficiently establishes the presence of ‘metabolites or components of marijuana’ sufficient to cause impairment.’”
• Ultimately, because Wal-Mart did not present any evidence establishing that the employee was impaired at work, such as scientific expert testimony opining on the sufficiency of the metabolite levels revealed by the employee’s drug test, or evidence of any symptoms of impairment, such as affected speech, walking, coordination, irrational or unusual behavior, the Court ultimately ruled in favor of the employee on her discrimination claim under the AMMA.

Takeaways for Construction Employers

• Employers may want to consider revisiting their drug and alcohol and drug testing policies to ensure they are not violating Arizona and Nevada law and are properly availing themselves of the protections under those laws.
• Employers may want to have a reasonable method of designating what jobs are safety-sensitive and whether pre-employment testing for marijuana will be conducted, and if so, for what positions and in what states.
• In Arizona, a positive drug test for marijuana, alone, may be insufficient to insulate an employer from liability under the AMMA and establish a good-faith belief that an employee was impaired at work. If a termination is based on a positive drug test, employers may want to be prepared to hire an expert to prove that the presence of marijuana metabolites sufficiently caused the employee to be impaired at work or be able to produce other evidence of impairment.
• Employers may want to train managers and supervisors on recognizing and documenting symptoms of impairment.