DOES NRS 613.333 ALLOW FOR OFF-DUTY CANNABIS USE?

In February of this year, Thoran Towler, our CEO at Nevada Association of Employers, wrote an article for the Reno Gazette Journal that explored recreational cannabis use in relation to Nevada’s waning labor supply. In the article, Towler implicitly raises the question, “Should Nevada employers consider revising their drug policies to accommodate the hiring of legal cannabis users?” There are several factors at minimum to consider: NRS 613.333 and employee off-duty conduct, the business’s involvement with the federal government, and the business’s proximity to public safety.

What Does NRS 613.333 Entail?

According to the Nevada legislature, Nevada Revised Statute 613.333 describes unlawful employment practices regarding discrimination against the lawful use of any product outside the premises of an employer which does not adversely affect the employee’s job performance or the safety of other employees. The statute goes on to state the following.

1. It is an unlawful employment practice for an employer to:

(a) Fail or refuse to hire a prospective employee; or

(b) Discharge or otherwise discriminate against any employee concerning the employee’s compensation, terms, conditions or privileges of employment, because the employee engages in the lawful use in this state of any product outside the premises of the employer during the employee’s nonworking hours, if that use does not adversely affect the employee’s ability to perform his or her job or the safety of other employees.

2. An employee who is discharged or otherwise discriminated against in violation of subsection 1 or a prospective employee who is denied employment because of a violation of subsection 1 may bring a civil action against the employer who violates the provisions of subsection 1 and obtain:

(a) Any wages and benefits lost as a result of the violation;

(b) An order of reinstatement without loss of position, seniority or benefits;

(c) An order directing the employer to offer employment to the prospective employee; and

(d) Damages equal to the amount of the lost wages and benefits.

3. The court shall award reasonable costs, including court costs and attorney’s fees to the prevailing party in an action brought pursuant to this section.

4. The remedy provided for in this section is the exclusive remedy for an action brought pursuant to this section.

(Added to NRS by 1991, 942)

Nevada employers that maintain a hardline drug policy may wish to lean on subsection 1 above that says, “If that use does not adversely affect the employee’s ability to perform his or her job or the safety of other employees.” Some employers may wonder how off-duty cannabis use affects the mind and problem-solving faculties of an employee while on duty. The Nevada Association of Employers can be your resource and advocate when questions such as this arise.

The Feds & Legal Cannabis Use

It may or may not be a surprise to Nevada employers that Nevada marijuana laws directly conflict with federal marijuana laws. At the federal level in the United States, cannabis remains an illegal, Schedule I narcotic (Wikipedia.org).

If Nevada deems cannabis use conditionally legal but the federal government does not, what does that mean for Nevada employers?

One factor to consider is how closely your business works with the federal government.

Does your business rely on federal funding? For example, the Bureau of Land Management may not be able to relax its drug policy because it is a federal institution.

Another example would be any business that is required to keep a Federal Firearms License (FFL). The issue is obvious just by looking at the name of the license: Federal Firearms License. Any business that depends on the federal government to legally operate must exercise additional caution when considering employment decisions impacted by cannabis.

Weed & Nevada Public Safety Officials

Any employer tasked with maintaining or protecting the public’s safety should take extra measures to know its drug policy inside and out. Following are just a few of the industries and professions that should seek absolute clarity when it comes to their drug policies. This list is by no means exhaustive. We include it here as a list of examples only.

• First responders including: firefighters, police, and paramedics
• Teachers, child-care workers, and those tasked with protecting children
• Medical professionals including: doctors, nurses, and administrators
• Military employees

NAE’s Audra Parton summarized the issues at hand best in her article, EMPLOYEE OFF-DUTY CONDUCT – WHAT CAN EMPLOYERS DO?.

 “At the state level, it’s a little trickier. What types of off-duty conduct and activities are protected vary state by state. For example, California, Colorado, New York, and North Dakota define (and therefore protect) off-duty activities more generally. Nevada has several laws that limit what employers are permitted to do regarding an employee’s political activity or off-duty lawful use of a product, but also gives great latitude to the at-will employment relationship, which permits termination for any reason or no reason at all so long as it is not for an unlawful reason.

Any instance where an employer is considering disciplining or terminating an employee for off-duty conduct should be carefully reviewed and determined on a case-by-case basis. Employers should make sure they have all the facts. They should avoid any knee-jerk reactions and fight the impulse to take any immediate actions. Employers should consult legal counsel or a trusted business consultant to make sure any decision that is made is compliant with state and federal law.”

*This article does not contain legal advice*

Do you know all your obligations as a Nevada employer? The Nevada Association of Employers (NAE) is here to help. Our staff of HR professionals is equipped with the knowledge and experience to assist employers in navigating the often complex world of employment-related statutes and regulations. Contact NAE today!

For more information about NAE and what we do for Nevada employers, visit our website. If you are a Nevada employer interested in membership, please contact membership@nevadaemployers.org or join today!

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