By: Phillip Silvestri, Senior Counsel
On June 5, 2019, Nevada officially established a common-sense approach to hiring that prohibits employers from making hiring decisions based on pre-employment marijuana use. The long and short of the (very short) bill, is that if an applicant tests positive for marijuana before they are hired, that test cannot be the basis for a hiring decision. However, there are caveats (it is, after all, a common-sense law). Firefighters, EMTs, applicants for positions that require an employee to drive (or where the employee might have to submit to state/federal drug screenings), and other similar positions where marijuana use could immediately affect the safety of others, are exempt.[1]
So why is this important? As readers of this blog are aware, Nevada has allowed recreational marijuana use since 2017. Although recreational use has been permitted, employers could decide not to hire you if you happened to consume long before you were going to be hired. But this law is admittedly not particularly far-reaching. Employers were, and still are, free to maintain a drug free workplace (and, yes, marijuana is considered a drug for these purposes). So what does this mean when you look at the new bill in conjunction with existing law? Well, prospective employees in most fields can feel free to consume before they are hired, but after they are hired, they’re out of luck.
It’s also worth noting that employers are also permitted to drug test employees post-hiring, and if the employee tests positive within 30 days, the employee can submit their own test to negate the positive test.[2] So what happens next? The employer must “accept and give appropriate consideration to the results” of the employee’s test. If that’s not legalese begging for litigation, we’re not sure what is.
If you’re an employer wondering what to do, and how to revise your policies to adapt to Nevada’s ever-evolving laws, please contact a Greenspoon Marder attorney.
[1] It’s worth mentioning here that this post will not get into the issue of whether pre-screen employment tests are in any way indicative of impairment.
[2] This also raises an interesting conundrum. Technically an employer could skip the drug test pre-employment, and test a week into employment. If you had consumed right before you started, it’s definitely still possible you’d test positive. This issue, however, will likely be more interesting in theory than in practice. It’s probably fair to say that employers generally don’t hire a person hoping to get to fire that person a week later (after all, hiring people takes time and money).