Courts Disagree On Whether Federal Criminal Law Trumps State Marijuana Laws

Volume 16, Issue 19
November 13, 2017

As Nevada employers grapple with state medical and recreational marijuana laws, the question often becomes what effect, if any, does federal law have on these difficult employment decisions. Can an employer refuse to hire a registered user of medical marijuana by relying upon the fact that marijuana is still illegal under federal law? Can the employer argue that federal law trumps state law on this issue? The Nevada Supreme Court has not yet addressed this argument. However, courts in other states have analyzed the issue, with differing results.

Recently, a Connecticut federal court rejected an employer's argument that its rescission of a job offer to a medical marijuana user was not discriminatory under the state's medical marijuana law because the federal Controlled Substances Act ("CSA") "preempted" or trumped the state law. The court in Noffsinger v. SSC Niantic Operating Co., determined that the CSA, which makes it a federal crime to use, possess, or distribute marijuana, does not preempt Connecticut's medical marijuana law because the two laws are not in direct conflict. Focusing only on the anti-discrimination provision of the state marijuana law, the court explained that the federal law "does not make it illegal to employ a marijuana user . . . . [n]or does it purport to regulate employment practices in any manner." Conversely, in 2010 the Oregon Supreme Court in Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industry, determined that the CSA does preempt Oregon's medical marijuana law. This court determined that the employer had no duty to accommodate the use of marijuana even though Oregon state law permitted its use.

While Nevada courts have not yet addressed this broad issue of whether the CSA preempts Nevada's medical marijuana law, a state court has ruled that federal law is relevant when considering a claim under Nevada's lawful use statute - NRS 613.333 which provides that it is unlawful for a Nevada employer to discriminate against a prospective employee or employee "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." In Hilder v. Boyd Gaming Corp., Judge Joe Hardy dismissed a complaint by a medical marijuana user who was not hired after he failed a pre-employment drug test. Judge Hardy dismissed the claim under NRS 613.333 because a product must be lawful under both state and federal law, and "federal law continues to prohibit the use of marijuana, even for medical reasons." Judge Hardy also dismissed the applicant's claim under the accommodation provision of Nevada's medical marijuana law by determining that it does not apply to applicants.

The legal landscape surrounding medical and recreational marijuana use in Nevada, and across the country, continues to be very complicated. Each of these cases is highly fact specific and requires a focused and careful analysis by employers and their counsel. We will continue to keep you posted on developments in this area.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.