Nevada Cannabis & Pre-Employment Drug Testing

It is unlawful to refuse to hire a prospective employee because a pre-employment screening test showed the presence of marijuana.

The protection does not apply to certain positions, including:

• Firefighters and emergency medical technicians (EMTs);
• Motor-vehicle drivers who are subject to testing requirements;
• Positions that, in the employer's determination, could adversely affect the safety of others;
• Where it would conflict with an employment contract / collective-bargaining agreement or federal law, or the position is funded by a federal grant.

Separately, an employee tested within their first 30 days of employment may pay for a second screening test at their own expense — the employer must accept and give appropriate consideration to the results.

Hiring is not the whole of the rule, and this is the half most Nevada employers miss. If an employee holds a valid registry identification card, the employer must attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of cannabis. There are three limits — the accommodation is not required where it would:

• Pose a threat of harm or danger to persons or property;
• Impose an undue hardship on the employer; or
• Prohibit the employee from fulfilling their job responsibilities.

This is not a rule you can wait to be audited on. In Freeman Expositions, LLC v. Eighth Judicial District Court (Nev. 2022) the Nevada Supreme Court read the section to carry an implied private right of action, so the employee can enforce it directly. Note also that the accommodation duty does not require an employer to allow use, possession or impairment at work.

• Prohibit possession, use, or impairment at work;
• Maintain a drug-free-workplace policy focused on impairment and safety;
• Apply reasonable-suspicion and post-incident testing consistent with the law.

Make sure your pre-employment screening and substance-abuse policy reflect NRS 613.132, and document which positions fall within the safety/driver exceptions. Give the accommodation duty at NRS 678C.850(3) its own path in the policy — it is triggered by a registry card rather than by a test result, so a policy written only around screening will miss it entirely.