CCBA CLE Article #8*:
Nevada Prohibits Pre-Employment Discrimination for Marijuana Use
By Bridget Kelly, Esq.
On January 1, 2020, Nevada became the first state to prohibit discrimination against prospective employees for testing positive for marijuana on a pre-employment drug screening (Glasser, N. et al., “Nevada Becomes First State to Prohibit Rejection of Applicants Testing Positive for Marijuana,” The National Law Review, July 1, 2019. https://www.natlawreview.com/article/nevada-becomes-first-state-to-prohibit-rejection-applicants-testing-positive). With the progressive legalization of medical then recreational marijuana, Nevada law has developed corresponding protections for law-abiding users in the workplace. However, these protections are not limitless and employers must balance state and federal requirements with overriding safety concerns.
Discriminatory Disqualification Prohibited
Assembly Bill 132 (2019) amended NRS Chapter 613 to generally prohibit any Nevada employer from failing to or refusing to hire a prospective employee due to the presence of marijuana on a screening test. Two of the bill’s sponsors, Assemblywoman Dina Neal (District 7) and Assemblyman Edgar Flores (District 28), stated AB132 was proposed out of concern for law-abiding marijuana users’ automatic disqualification from employment opportunities (Minutes of the Assembly Committee on Commerce and Labor, February 20, 2019, “Assembly Minutes”).
The legalization of recreational marijuana in Nevada in 2017 created a disconnect between prospective employees’ legal activities and employers’ “drug-free” expectations. Marijuana is now essentially on par with alcohol, yet applicants are much less likely to test positive or be disqualified for the presence of alcohol on a screening test compared with marijuana. As detectable levels of marijuana can remain in the system for thirty days or more, compared with hours or days for alcohol, marijuana users have been at a distinct disadvantage when applying for jobs which test for such substances as a condition of employment.
According to Assemblywoman Neal, “We are currently in the weird position of saying that one group of individuals is not worthy because they smoke marijuana, but at the same time somebody could be drunk as a skunk last week and still have a job. What is the difference?” (Assembly Minutes, p. 16.)
As Assemblyman Flores stated, AB132 “is only meant to address that individual who says I did not know that a requirement for your job was that I could not smoke marijuana. I smoked it last month. Allow me to go through the interview process and once we form that employee/employer relationship, if you do not want me to drink, smoke, or anything else, I will do that.” (Assembly Minutes, p. 27.)
Assembly Bill 132, codified as NRS 613.132, also affects drug screens required within 30 days of employment. Employees who fail such a test have the right to submit an additional screening test in rebuttal, at the employee’s expense, which the employer must accept and consider appropriately.
Employer Autonomy Over Workplace Conditions and Job Requirements
The pre-employment discrimination protections of NRS 613.132 do not apply to applicants for positions that, in the determination of the employer, could adversely affect the safety of others. Specifically, the law excludes firefighters, emergency medical technicians, and drivers of motor vehicles subject to federal or state screening tests. The protections also do not apply to the extent they are inconsistent or conflict with provisions of an employment contract, collective bargaining agreement, or federal law; nor do they apply to positions funded by federal grants.
Although NRS 613.132 extends protection of legal substance use to the pre-employment stage, it does nothing to limit an employer’s discipline or termination of an employee who is impaired on the job. Employers may still implement drug-free workplace policies and employees may face adverse action for violations. As Assemblywoman Neal stated, “[AB132] deals only with what happens when a recreational user who smokes only on the weekend is looking for employment. It does not deal with what happens in the workplace. If you get caught smoking on the job, you are going to be fired. If you violate any of the workplace safety rules, you will be fired . . . . [Using marijuana] is as legal as being drunk, but nobody is saying you can go to work drunk.” (Senate Minutes, p. 6; Assembly Minutes, p. 7.)
Accommodating Employees’ Private Use of Legal Substances
Since 1991, it has been unlawful to fail or refuse to hire a prospective employee, or discharge or discriminate against an existing employee, for engaging in the lawful use of any product during non-working hours and outside the employer’s premises (NRS 613.333). While this law was enacted primarily to protect tobacco users from discrimination in the workplace, it had since been interpreted to protect users of medical marijuana since its legalization in 2001 (Minutes of the Senate Committee on Commerce and Labor, May 10, 2019, “Senate Minutes,” p. 10; (Minutes of the Senate Committee on Commerce and Labor, May 29, 1991, p. 12).
However, NRS 613.333 did not address applicant disqualification for failing a pre-employment drug screen. Employers could choose whether or not to screen applicants for marijuana, and make hiring results based upon those results.
With the growing legalization of both medical and recreational marijuana across the United States, employers have found it increasingly difficult to maintain a marijuana-free workforce. Caesars Entertainment had voluntarily stopped pre-employment marijuana screening in 2018, in order to find qualified workers (Velota, R., “Caesars no longer screening job applicants for marijuana use,” Las Vegas Review-Journal, May 7, 2018 https://www.reviewjournal.com/business/casinos-gaming/caesars-no-longer-screening-job-applicants-for-marijuana-use/).
According to Thoran Towler, CEO of the Nevada Association of Employers, approximately half of the associations’ over 400 members had already stopped pre-employment screenings for marijuana as of June 2019 (Nevada Association of Employers, “Nevada Firms Barred from Using Marijuana Test to Reject Job Seekers,” June 18, 2019 https://www.nevadaemployers.org/nevada-firms-barred-from-using-marijuana-test-to-reject-job-seekers/). Senator James A. Settelmeyer noted that in Washoe County, employers “ran out of employees, and many [employers] quit testing because they just cannot find anyone to work who can pass a drug test.” (Senate Minutes, p.12.)
*Note in regards to CCBA Article #8: The Clark County Bar Association (CCBA) offers 1.0 general Continuing Legal Education (CLE) Credit (for 2020) to Nevada lawyers who read the article, complete the accompanying test, and make payment to Clark County Bar Association, PO Box 657 Las Vegas, NV 89125, and per the offer described in the print and PDF versions of the April 2020 issue of Communiqué (pp. 20-25). CCBA is an Accredited Provider with the NV CLE Board.
About the author:
Bridget Kelly, Esq. is an attorney with Nutile Law, practicing in the areas of corporate and administrative law with a healthcare focus.
This article was originally published in the “Cannabis Law” (April 2020) issue of Communiqué, the official publication of the Clark County Bar Association.
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