Marijuana Legalization and Employee Drug Testing in Nevada

Looking for a job in Nevada? Do not be surprised if your prospective employer requires a drug test that includes a screening for marijuana use. Why would they test for a substance that is legal to consume in Nevada? Because they can.

Labor law in this country is federalist in nature, with the states and federal government sharing jurisdiction. An employer must maintain a workplace that conforms to both sets of laws. Some states have laws that regulate or restrict an employer’s ability to drug test employees, but Nevada is not one of them. Federal law does not prohibit drug testing.

Many companies, even in states with some form of legalized marijuana use, are keeping their “zero tolerance” workplace drug policies, or continue to test for marijuana. On the Las Vegas Strip, MGM Resorts, for example, still drug tests as part of their hiring process. Others are choosing not to test potential employees for pot. Some hotels are finding it difficult to find enough workers who can pass, and are skipping the test. Caesars Entertainment is the latest company to drop testing for marijuana. According to a spokesman, Caesars will only drug test employees if they suspect that they are using.

While Nevada has legalized marijuana use, pot remains illegal at the federal level. The Controlled Substances Act still classifies marijuana as a schedule 1 drug. This classification labels marijuana as having “a high potential for abuse…has no currently accepted medical use in treatment in the United States [and] there is a lack of accepted safety for use of the drug or other substance under medical supervision.” These conflicting rules put both employees and employers in a bind, and may lead to litigation.

Coats v. Dish Network, a Colorado Supreme Court case, is a good example. Brandon Coats, a quadriplegic who used medical marijuana at night for pain, sued his employer for wrongful termination when he was fired after failing a random drug test. He argued that he should not have been fired for “engaging in any lawful activity off the premises of the employer during nonworking hours.” The Court ruled against him, finding that the term “lawful activity” extends to both state and federal law.

Though marijuana use is now legal in Nevada, there are situations where you may want to consult with an attorney before doing so. In addition to employment situations, your pot use could work against you in a custody battle. Legal does not necessarily mean acceptable.

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