Can Employers Test for Marijuana in Nevada?

Since recreational use became legal in 2017, Nevada has been at the forefront of cannabis reform. From passing laws that allow veterinarians to administer CBD to the legalization of consumption lounges, Nevada lawmakers have sought to fill missing gaps in marijuana legislation. 

One of the gray areas that have been a topic of concern for many is cannabis in the workplace. Though medical use has been legal since 2001, law-abiding users have been largely unprotected from workplace discrimination. In 2020, policymakers set to address the ambiguity of marijuana testing and passed a law that would ban discrimination against prospective employees for testing positive for THC on a pre-employment drug screening. 

Though this new legislation creates a more inclusive space for cannabis users, the protections are not limitless, so let’s uncover how this affects THC-users and employers:

Cannabis in the Workplace

Nevada’s push for legal marijuana left significant holes in respect to employment laws. Now legal to anyone 21 years of age or older, cannabis created a disconnect between employees’ legal activities and employers’ “drug-free” expectations. Even after voters passed Question 2, employers still routinely screened applicants to determine cannabis use. Whether they blatantly admitted it or not, they could also refuse to hire (and fire current employees) who failed these drug screenings. This prospect raises the question, “Can employees be discriminated against for what they partake in outside of the workplace?”

In recent years, cannabis has become akin to alcohol in terms of social acceptability – except for one thing, applicants are much less likely to be disqualified from a hiring decision for alcohol use. Similarly, marijuana can remain in the system long after it’s been ingested. Someone who smoked a month ago could still have traces of THC in their system, compared to the hours that alcohol lasts in the body.

In other words, an individual who smoked a month ago hypothetically seems less qualified than a person who was black-out drunk last week. That’s not to say that alcohol drinkers have less work ethic than cannabis users, but merely a representation that legal substance use outside of work is a poor indicator as a condition of employment. 

AB 132: Marijuana Testing in Nevada

To address these concerns, policymakers created AB 132. This bill bans most employers in the state from testing for THC as part of pre-employment drug screenings. Of course, there are exceptions to this rule. Positions that affect the safety of others may still test (and disqualify applicants) for cannabis use. The jobs that fall under this category include, but are not limited to: 

• Firefighters
• Emergency personnel (nurses, EMTs, police officers, etc.)
• Drivers or jobs that require driving
• Security guards
• Federal government jobs

Another important part of AB 132 is the employee’s right to additional screening. The legislation states, “If an employer requires an employee to submit to a screening test within the first 30 days of employment, the employee shall have the right to submit to an additional screening test, at his or her own expense, to rebut the results of the initial screening test.” 

In other words, employers must accept and consider applicants who resubmit a screening test that they initially have failed.

The purpose of this is to combat the long-lasting effects of THC that may not accurately reflect the prospective employee’s usage. For example, if an individual used cannabis before applying to the job and did not understand the requirements, this allows an additional opportunity to show the usage was not recent. As mentioned, cannabis can last in the body for weeks or more. Hypothetically, an individual could apply to a job under the guise they do not currently smoke (or will not going forward), and still fail the pre-screening because of THC’s lingering effects. This condition for AB132 allows the employee/employer relationship to form and grants an opportunity for current behavior to reflect more than past behavior. 

So, can employers test for marijuana in Nevada?  

Under AB 132, some employers cannot test for marijuana use during the hiring process. This means they cannot disqualify an applicant for testing positive for THC on a pre-screening drug test. The exceptions to this law are jobs that impact the safety of others, including emergency personnel, federal jobs, security positions, and jobs that require driving. 

It’s also important to note that this law still allows for employers to have a drug policy. Additionally, employers can still perform random drug tests and fire you for showing up to work under the influence. At the same time, many employers have found it increasingly difficult to maintain a cannabis-free workplace and have voluntarily stopped testing for marijuana use. When in doubt, check with your employer first!

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