Weed in the Workplace; Don't let your Business get Burned

Rena McDonald

Nevada’s Question 2 passed with 54 percent of the vote and was one of 7 states that passed similar measures this election cycle. Essentially, it decriminalized some recreational use of marijuana after January 1st, 2017. Very little guidance was provided in the legislation regarding how the measure applies to employers, so the onus will be on companies to navigate this new world until further legal clarity comes forth. In the meanwhile, there are now more things to add to your business’s to-do list before the end of the year to avoid a cavalcade of complications.   

First, it is recommended that businesses update their personnel handbooks, compliance policies, and guest-use policies immediately. If you are not sure what your policy should or legally can be, now would be a good time to consult a lawyer familiar with employment law. Preparation can prevent problems and save you stress and expense in the long run.  

The demands to maintain a safe workplace means that employers have a substantial interest in the use of recreational marijuana by their employees. In order to minimize the employer’s liability in workplace accidents, employers should establish rules that prohibit employees from being under the influence of alcohol or drugs during the workday. 

While it is fairly easy to test and determine if an employee is under the influence of alcohol during the workday it is much more difficult to determine if an employee is under the influence of marijuana during the workday as marijuana can remain in a person’s system for prolonged periods of time.  Currently, Nevada law is undeveloped as to whether you can prohibit your employees from using marijuana outside of the workplace.  Some may argue that you can terminate an employee who fails a drug test because marijuana is still illegal under federal law.  This ideology for some is supported by a decision by the Colorado Supreme Court who found that an employer did not violate Colorado’s lawful activities statute by terminating an employee who failed a drug test due to his use of medicinal marijuana outside of the workplace.  There are others who argue that the statutes put in place to protect an employee’s lawful use of any product outside the premises of the employer also apply to the use of marijuana.  The Nevada Supreme Court has not been presented with any cases raising this question yet and it will be interesting to see if the Nevada Supreme Court will rely on the Colorado Supreme Court’s decision or will rely on the statutes discussed above.

 In addition to recreational marijuana use, Nevada employers must also be compliant with the separate laws pertaining to the medicinal use of marijuana where it has been decided that employers must, in certain circumstances, make reasonable accommodations for the medical needs of an employee. 

 

 

Private business may still test for and terminate employees for failed drug tests of all illegal drugs and may terminate any employee who is under the influence of alcohol while on duty.  If you are a federal employer or a private employer that accepts federal funds all use of cannabis is outlawed.  

 

Deciding what is acceptable conduct for employees on company time and while off the clock is akin to the same guidelines for other activities that can and do spill over into workplace roles and duties. As this law is developing it may be best to consult with an experienced attorney in or der to effectively  establish a policy that is compliant with the laws, appropriate for your business and clearly defines and communicates your guidelines to your employees. McDonald Law Group is available to help your business navigate this issue and any other legal matter facing your company. Please call the office to schedule a consultation. 

 

 

This article was provided for informational purposes only and does not constitute legal advice or establish an attorney-client relationship.  

Vegas Seven interviews Rena McDonald and other Top Nevada Attorneys

Rena McDonald

Vegas SEVEN is an innovative weekly publication about life in Las Vegas—news, nightlife, sports, style, A&E and everything in between. Recently, founder of McDonald Law Group, Rena McDonald, was invited, along with other top Nevada Attorneys, to sit down and discuss the recent elections, law changes and the particulars of practicing law in the Silver State. 

Rena, a life-long Southern Nevadan, is deeply invested in the community and has chosen the law as a way to serve her community. The interview was a great opportunity to have a chance to hear her thoughts and perspectives. We are happy to share it with you now by clicking here to read the full article

 

 

Water Damage and Neighbor Disputes: When is your Neighbor Responsible for your Loss?

Rena McDonald

Freezing temperatures in the Las Vegas valley bring about problems such as frozen pipes, burst pipes and broken pool pumps.   These situations can cause damage to not only your property but perhaps even you neighbor’s property. When the water damage may have been caused by a neighbor's negligence, serious disputes can arise. In this article we will be discussing two water categories; Surface and Careless Water.

Surface Water

In general, a neighbor will not be responsible for damage to your property caused by runoff from naturally occurring rain and land conditions. So even if your garden is ruined after every flash flood, from water running off of your neighbor's land, you probably don't have any recourse.

If your neighbor has landscaped his land or altered his property in some other way that causes more water to run onto your land than would otherwise naturally occur, then you may have some recourse to recover for the damage. There are three common doctrines which have been followed in the United States: the common enemy doctrine, civil law rule, and the rule of reasonable use.   The Nevada Supreme Court initially adopted the civil law rule of drainage in 1885. The civil law rule was later changed when the Nevada Supreme Court adopted the reasonable use rule for surface water drainage in 1980.  Nevada does not recognize the common enemy rule.

Reasonable Use Rule – Many states use this rule; however, each state may apply it in different ways.  In Nevada a landowner or user, acting in good faith, may drain surface waters and cast them on a neighbor's land.  However, the flow of water must be reasonably necessary for drainage, they must take reasonable care to avoid unnecessary injury, the benefit to the drained land must outweigh the harm inflicted to your land, and if it is possible your neighbor must avoid the harm by improving or complementing the natural system of drainage.

You may ask: what kinds of alterations are considered reasonable and what are unreasonable? Nevada Courts tend to look at each case carefully when considering whether an alteration was reasonable, so there is no clear cut line separating reasonable from unreasonable. Nevada Courts look at some general factors to help it in its judgment. These factors may include:

·         How important was the alteration?

·         Was increased damage reasonably foreseeable at the time the alteration?

·         What’s the comparative damage to your property versus the increased use or value of your neighbor's property?

Careless Water Damage

If your property has been damaged because of the carelessness or negligence of your neighbor, you may be able to collect compensation for your damage and losses.

Careless water damage is often the result of simple accidents and forgetfulness. Sources of these types of damages include leaking or broken water hoses, leaky sprinkler heads, broken, frozen or burst water pipes, and even clogged rain gutters. You may even be compensated for damage caused by your neighbor's water pipes because maintenance is the responsibility of owners.

 

What Damages Must Be Paid?

If you can prove that your neighbor is responsible for water damage, you may be able to collect damages for:

·         The cost of repairs or replacement of water damaged property

·         The cost of staying at a hotel if your home is uninhabitable because of water damage

·         Punitive damages if you can show that your neighbor acted maliciously

Insurance

In addition to legal remedies you should be proactive and speak with your insurance agent about homeowner's insurance and flood insurance.  While insurance cannot prevent water damage caused by your neighbor it may give you the financial resources to begin making repairs and mitigate your damages.  It may also protect you financially in the event that you are the neighbor that causes the damage.

We encourage you to properly maintain your home, pipes, and landscaping to avoid being the cause of a neighbor's damage. Consider what improvements or maintenance your property may require.  Finally, make sure you have the proper insurance to protect your property.

If you have property damage that is a result of a neighbor's negligence or you have questions about other neighbor conflicts, please contact our office for a consultation.

 

This article is offered for informational purposes only and does not constitute legal advice or initiate an attorney-client relationship.

3 Powerful Power of Attorney Documents: Your Voice When You Cannot Speak for Yourself

Rena McDonald

The Power of Attorney is a document that lets someone make legal decisions on your behalf if you are unable to do so yourself. There are 3 Power of Attorney documents that you should know about and consider before you need them. When you need them it is already too late.

Power of Attorney for Health Care Decisions

This designates a trusted person to make life sustaining decisions for you in the event you are unable to do so yourself. This is often referred to as a ‘Living Will’ or ‘Advanced Directive’ because it designates, firmly, what you would like to happen in scenarios where you may find yourself on life support, for example. In addition to advance directives, a Health Care Power of Attorney designates a person to make judgements on your behalf such as:

·         Consent or refuse consent to any medical care except any act that violates the law or the wishes you've stated in your living will

·         Hire or fire medical personnel

·         Make decisions about the best medical facilities for you

·         Visit you in the hospital or other facility even when other visiting is restricted

·         Gain access to medical records and other personal information, and

·         Get court authorization, if required to obtain or withhold medical treatment, if for any reason a hospital or doctor does not honor your living will or the authority of your health care agent

 

Power of Attorney for HIPAA Compliance

Pursuant to Federal Regulations, this document designates which people your medical professionals can communicate with regarding your care. If you do not specifically tell your doctor which members of your family or other persons oragents they can speak to, they are not legally allowed to disclose any informationto them.

Even if you have a Health Care Power of Attorney. A Health Care POA may not go into effect until you become incapacitated and even if it does it may not contain all the provisions required in a HIPAA Power of Attorney. This means your agents won't be able to get the medical information necessary to determine how to move forward with your treatment and to determine if you have been declared incompetent. This is a catch 22 you do not want your agent to be caught in. With a HIPAA POA, your agent can:

 

·         Access your medical records

·         Speak to your medical professionals regarding care

·         Speak to insurance and other HIPAA-bound professionals to and obtain information

·         Communicate before you are declared incapacitated

Financial Power of Attorney

This document allows a person/agent to act on your financial behalf and to perform tasks such as making sure your mortgage is paid, lights are kept on and bills are paid while you are not able to do so yourself. Your Agent can be designated to do the following:

·         Access bank accounts

·         Sign income tax returns

·         Sell stocks and manage real estate

 

Many people already have one or all of these Power of Attorney documents drafted 5 or 10 years ago.  The law and the requirements necessary to have a valid Power of Attorney change frequently.  As such, it is important to have these documents reviewed by a knowledgeable attorney every few years to ensure that your Power of Attorney documents are still valid.

If you have questions regarding which Power of Attorney Documents you may need, please call the office for a consultation at 702-448-4962.

This article was provided for informational purposes and is not legal advice nor does it designate attorney client privilege.