With all the craziness here in Nevada emanating from the COVID-19 epidemic and subsequent unemployment debacle, the new Nevada legislative ban on pre-employment testing for cannabis might have slipped to the back of the mind. Well, we always want to help so here are five things that everyone should know about the new rules.

When Did Nevada Pass Marijuana Legalization Laws for Recreational Use?

To recap the legislative history, the state of Nevada first legalized marijuana for recreational purposes starting in January 2017. Tax revenue from the legalization of marijuana during the first year was $42 million.

The change in the marijuana law was heralded with much pomp and circumstance; however, it is important to understand that passing the state law did nothing to change federal drug laws.

Under the Controlled Substances Act, federal law still lists marijuana as a Class I drug. As such, marijuana is still illegal under federal law regardless of how many state laws legalize the substance.  And that is true whether a person buys, sells, or possesses marijuana. Doing any of those things is still a federal crime. This fact may cause an unpleasant surprise to anyone carrying marijuana on federal grounds, such as federal buildings where a person is employed.

Does Nevada Place Restrictions on Marijuana Use?

Residents and visitors of Nevada may go to any licensed dispensary to purchase recreational marijuana. In addition, each person may possess one ounce of marijuana, 1/8 ounce of concentrated cannabis, or up to 3500mg of THC in infused products. Concentrated cannabis means the resin derived from the cannabis plant.

In general, concentrated cannabis may take the form of oils, wax, tinctures, or any other form made through an extraction process. Cannabis concentrate levels resulting from some extraction processes can reach as high as 80% THC. CBD oils for medicinal use is often as high as 4% THC. That goes a long way to explain Nevada’s 1/8 ounce restriction with respect to concentrated cannabis.

How Did The Legislature Catch Up With Employment Law?

Nevada’s change to legalize recreational marijuana use left a significant issue with respect to employment laws. Even after the legalization of recreational marijuana, employers routinely screened applicants for new hires to determine marijuana use. They would then refuse to hire (or fired conditional employees) who failed the pre-employment screening. One concern raised by proponents of recreational marijuana is that pre-employment tests can detect the drug in a person’s urine several weeks after they’ve actually used it.

Now that marijuana use was legal in both medicinal and recreational form, it was incumbent upon the state legislature to take steps to fix the pre-employment testing conundrum. Other states that legalized marijuana struggled to address what is basically a discrimination issue. Some, like Maine, have made it generally illegal to discriminate against marijuana users but the legislature put no specific policies in place with regard to pre-employment testing.

That approach didn’t seem to help solve the pre-employment testing issue. On June 5, 2019, Nevada’s governor signed Assembly Bill No. 132 into law.  Beginning January 1, 2020, it is illegal in the state of Nevada to consider a potential applicant’s pre-employment screening as a failure or to refuse to hire an applicant whose pre-employment drug screening indicates marijuana use. The term drug screening includes a test of an applicant’s blood, urine, saliva, or hair to detect drug use.

Some employers require that new employees submit drug screening results within 30 days of the date of hire. In such cases, Nevada’s AB 132 requires that employees whose employment-related drug screenings indicate marijuana use must be allowed to take a second test to refute the first test’s results but at their own expense. If an employee passes the second drug screening, the law mandates that an employer must “accept and give appropriate consideration to the result of such a screening test.”

The new law does not apply:

  • if it conflicts with the terms of collective bargaining agreements or employment contracts,
  • to the extent that it contravenes federal law, and
  • it does not apply to employment that receives funding from a federal grant.

Above all, the law does not require employers to tolerate marijuana use on the job. The law’s design is for employers to treat marijuana use on the same basis as they treat alcohol use.

What Should Employers Do?

As noted above, the ban on pre-employment testing for marijuana became effective on January 1, 2020, so employers must comply on and after that date.  Still, it’s not too late to bring hiring policies into compliance. Here are some ideas:

  • If employers have not already done so, they should review their pre-employment drug screening policies immediately.
  • Employers should excise marijuana from the drug panel. More employers are choosing not to test every applicant for marijuana use because of the “lack of a reliable test to show intoxication.”
  • Employers must revise hiring policies to note that marijuana use “off the job” is not a reason for refusing to hire someone.
  • Employers should review their job descriptions to determine which positions are exempt from the new rules under the “safety of others” or “security” standards.

To learn more about how the laws in New York City and Nevada treat pre-employment testing bans differently, you may enjoy the 2019 article from Forbes.com entitled “Up in Smoke: Pre-employment Marijuana Testing Goes Poof in NYC and Nevada.”

If you’d like to talk to one of our experienced staff about any of these points, or about anything else, we encourage you to contact us. Make us your resource for all your insurance questions.