Nevada's New Pre-Employment Marijuana Testing Laws: 4 Things You Should Know

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Guru Online - Drug testing regulations have been reevaluated in recent years as a result of the legalization of marijuana in many US jurisdictions.

When the governor of Nevada signed Assembly Bill 132 into law, Nevada became the first state to outlaw businesses refusing to hire candidates who tested positive for cannabis after a pre-employment drug test.

Continue reading to learn how pre-employment drug testing policies will be impacted by Nevada's new drug testing regulations in 2022, as well as what steps employers can take to protect themselves from potential civil lawsuits.

• AB132: What is it?

Assembly Bill 132 went into effect on January 1st, 2020 after being approved by Nevada Governor Steve Sisolak in June 2019. For the first time in US history, when the bill became law, it was illegal for the majority of Nevada employers to reject job seekers because they tested positive for marijuana during the hiring process. Two further significant elements of the new law are as follows:

1) Special cases

Health care professionals who might hurt others while doing their tasks while under the influence of marijuana, such as firefighters, EMTs, truck drivers, and those with driving responsibilities are not covered by the law.

If a pre-employment drug test reveals marijuana in the applicant's system, they may still be denied employment.

2) Possibilities for retests in opposition

In addition, the rule permits new hires who pass an exam during the first 30 days of employment to retake it at their own expense. The testing center may be chosen by the employee, who will then report the updated results to the company.

In this approach, the results of the initial employment exam might be disputed or refuted by the employee. The employer must accept the revised findings and take them into account appropriately.

What circumstances have not changed since AB132 was passed?

Not much has changed, despite the fact that the majority of companies are now prohibited under the 2020 Nevada drug-testing law from rejecting applicants who test positive for marijuana.

Employers nevertheless need to be aware of additional considerations that may determine whether or not potential or new employees, even those in occupational categories like drivers, firefighters, law enforcement, EMS, and others, might be terminated for testing positive for marijuana.

1) A medicinal marijuana program is still in place in Nevada.

Those who legitimately possess a medical marijuana license may use the drug for therapeutic purposes. However, there are exceptions in Nevada statutes for jobs that require a high level of safety, meaning that people in these positions who might do harm to others while intoxicated would not be covered by the new rule.

But there is leeway for ambiguity, and not all members of the armed forces, truck drivers, healthcare providers, and those engaged in potentially hazardous occupations (such as construction workers) are necessarily disqualified from receiving protection.

According to Nevada Revised Statute 453A.800 (2021), an employer is not required to provide accommodations for medical marijuana use by employees. For instance, it is not necessary to permit marijuana use for medical purposes at work. The law also stipulates that the employer must meet the medical requirements of an employee who uses medical marijuana. (Under some conditions, the statute excludes law enforcement agencies.)

2) Employers are not required by the new law to permit employees who are under the influence of marijuana or other prescribed medications to report to work.

According to the aforementioned Nevada Revised Statute 453A.800, employers still retain the ability to prohibit marijuana use on their private property and at their places of employment (2021),

3) Employers are still permitted to demand random drug tests beyond the initial 30-day probationary term.

Employers may continue to conduct drug tests and terminate workers who test positive for drugs other than marijuana if their policies and procedures call for continuing drug testing throughout the course of the individual's employment.

4) According to federal law, marijuana continues to be a Class I banned substance.

Marijuana use, possession, and sale are still illegal, and those who do so are breaking the law. The potential employee runs the risk of being denied employment under federal regulations if the firm is a federal contractor or gets government support.

Under the new state drug pre-screening legislation in Nevada, can businesses still be sued?

Nolo (R) cautions that although while Nevada does not have any restrictions on employment drug testing, people can still utilize discrimination laws to defend themselves if their drug test results are positive. Nolo (R) lists various situations where businesses should be on the lookout for potential discrimination lawsuits:

Disability-related prejudice

Nolo (R) reminds us that an employee or candidate who is taking medicine for a condition is protected under the Americans with Disabilities Act (ADA). An applicant or employee may file a lawsuit and the business may be held legally responsible if such a person is taking a prescription for a handicap, tests positive for it, and is subsequently dismissed or turned down for employment.

Additional forms of prejudice

The Nevada Fair Employment Practices Act continues to be in effect in addition to federal anti-discrimination regulations.

Business and Learning Resources (BLR) reminds employers that this Act also prohibits discrimination against employees on the grounds of "race, color, religion, sex, sexual orientation, gender identity expression, age, disability or national origin, or refusal to permit a service animal at the place of employment" (NV Rev. Stat. Sec. 613.310 et. seq.).

And according to BLR, as of 2021, the Act's definition of "race" includes hairdos and physical traits related to hair that are related to ethnicity or race.

Therefore, while creating and executing their drug-testing programs, Nevada businesses must carefully review the wording of both federal and state regulations to avoid being accused of discriminating against protected populations.

breach of privacy

Nolo cautions that even if an employer has a good purpose for evaluating an employee, they cannot infringe on the employee's privacy. According to Nolo, requiring employees to undress or give a urine sample in front of others can, depending on the situation, be regarded as a violation of their privacy.

Defamation

Last but not least, Nolo (R) gives an illustration of a defamation lawsuit that can develop if the employer makes a fake result public. If the employer "acts in bad faith" or "knows or should have known that the finding was erroneous," an employee or potential employee who has tested positive for drugs may have a legitimate defamation claim.

Additional recent local Nevada laws

Depending on whether a position is deemed to be "safety-sensitive," further new local Nevada regulations may define and have an impact on a company's capacity to hire or terminate personnel.

In fact, a few of these recently passed local laws might have an impact on whether or not these "safety-sensitive" positions would call for (or even permit) a marijuana "zero-tolerance" policy.

There have already been instances in Nevada where a police department's "zero-tolerance" policy has been contested and deemed unworkable.

With the new laws, how can businesses defend themselves?

Businesses should review their pre-screening procedures. Employers must determine whether positions fit within the applicant categories that aren't covered by the new pre-screening law (such as fire fighters, EMS workers, and other unspecified workers who would cause harm if they performed their work impaired).

Use's important to specify which jobs still forbid marijuana use and which ones permit it on one's own time, unless one is in a scenario where doing so will render one's performance compromised.

Finally, when creating and enforcing their policies, businesses must review the wording of all applicable state and federal employment laws, state and federal laws governing drug testing, and state and federal laws governing discrimination.

They must also consult with their legal departments. Because it can be difficult to know when and when the new Nevada drug testing regulations may apply, such care is required.