Nevada's New Marijuana Hiring Law & How It Impacts You
With the new year came a number of new changes to some employment laws in Nevada. One of those changes is the addition of NRS 613.132 which states that, with some exceptions, an employer may not refuse to hire someone because that person tested positive for marijuana on a pre-employment drug test. But what are the practical ramifications of this new law for businesses and employees?
Exceptions
Notably, the new law excludes firefighters, emergency medical technicians, and employees who operate a motor vehicle and are subject to state or federal screenings. The law also excepts employees who work in a position that could adversely affect the safety of others. Notably, there is no specific definition or category of jobs that automatically affect the safety of others.
Instead, the law leaves that determination up to each individual employer. Therefore, business owners should be looking at the essential job functions of each position and make a determination as to whether those job functions are reasonably related to ensuring safety the safety of others. Arguably, however, this could leave some room for interpretation and inconsistencies.
For example, if a person is applying to be a fry cook at two competing fast-food restaurants, one may decide that the improper operation of a deep fryer could adversely affect the safety of others and therefore disqualify a person for failing a drug screening. The other restaurant may determine that the proper operation of a deep fryer would not adversely affect the safety of others and thereby hire said person. Business owners may want to consult with their liability insurance companies to determine which jobs are more likely to affect safety in making that assessment.
Post-Hire
Once an employee is hired, the new law does not prevent that employee from being terminated for failing a post-hire drug test. The only protection for employees under the new law comes in the first thirty days of employment. If during that time an employee tests positive for marijuana, the employee can, at his or her own expense, pay for a second test. If that test comes back negative, the employer must then accept those results. However, this would only protect those who believe the results of their initial drug test were incorrect, it would not protect anyone who had actually imbibed in marijuana in the days leading up to the test.
Just because an employee has made it past the initial screening does not mean they are then free to smoke marijuana without consequence. Under NRS 453D.100(2)(a), the legalization of marijuana in Nevada does not prohibit a public or private employer from maintaining, enacting, and enforcing a workplace policy prohibiting or restricting the use of marijuana by employees.
Just as an employee could be terminated for being drunk on the job, even though the consumption of alcohol is not unlawful, an employee who is under the influence of marijuana on the job can similarly be terminated. The central question, however, is how to know whether the employee is under the influence while on the job? Unfortunately, current testing for the presence of marijuana is not precise enough to know whether a person is currently under the influence, or was under the influence a few days prior.
More and more, employers are finding that quality, hard-working, and dependable employees are choosing to use marijuana outside of work hours in ways that do not affect their work. However, this does not mean that every employer must condone marijuana use by its employees. Business owners will want to work with their Human Resources advisor, insurance provider, and/or an attorney to come up with a reasonable drug testing policy to ensure that their business needs are met.