Employee Drug Tests & Protecting Your Business

Nevada has been at the forefront of laws permitting the sale and use of marijuana.  During this past Legislative Session, Nevada rushed past other states in prohibiting employers from disqualified prospective employees because of a failed drug test.  Many employers are now wondering what to do with their “zero tolerance” policies and how to ensure the safety of their business, staff and the general public as it relates to impaired staff.

AB 132, while broad, does have substantial exceptions and you can preserve your policies – but you do need to make some changes.  The main thrust of the new law (which goes into effect on January 1, 2020), is that it is unlawful for any employer (regardless of size) to fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.  The most significant exception is that the law does not apply if, “in the determination of the employer” the presence of marijuana could adversely affect the safety of others.  

In order to fall within the exception, a business should (at a minimum) make changes to its employee handbook and create specific job descriptions that detail the “adverse effect” on the safety of others.  If your business fails to do these things, uses drug tests as preconditions to hiring, and does not hire a candidate because of the presence of marijuana in his/her system, your business will be in violation of Nevada law.  

On the other side, if you have employees that could affect the safety of others (think drivers; people working in kitchens; people working with machinery) and you either do not test them or you hire them despite a failed drug test, an injured party will still have the ability to sue your business for any damages suffered from the consequences of that employee.  Thus, if you have a delivery driver that you know has had marijuana in his/her system yet they continue to drive for your business – any accident that occurs may land you in court on the troublesome side of a negligent hiring lawsuit. Because marijuana remains illegal on a federal level, this may affect your ability to have your insurance company pay on such a claim.

The best way to protect your business is to create and maintain the proper documents.  Gordon Law is here to help you evaluate what documents you need and to ensure they are both compliant with Nevada law and protect your business from civil litigation.