nevada drug test ban 2020 employers can turn away employees due to fail marijuana drug test

2020 Drug Test Ban: Nevada Becomes The 1st State To Ban Drug Tests For Employment

Nevada became the first state that doesn’t allow employers to refuse to hire a job applicant if she or he tested positive for THC. Thus the state of Nevada becomes the first state ever to pass such a law as far as weed and employment are concerned.

According to the new bill signed on the June 5, 2019, by Governor of Nevada Steve Sisolak – Assembly Bill 132 – “It is unlawful for any employer in this State 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 bill will come into force in 2020.

There are, of course, notable and somewhat reasonable exceptions. The law does not apply to:

  • Firefighters.
  • EMTs.
  • Employees who operate a motor vehicle.
  • Those who, in the determination of the employer, could adversely affect others’ safety.

Does The Drug Test Ban Protect Employees As Well?

The primary goal of the 2020 drug test ban seems to protect new hires. However, current employees are currently taking millions and millions of marijuana drug tests.

Does the Assembly Bill 132 protect the employees from being fired on the basis of failing a marijuana drug test?

They are, to a reasonable degree. The Bill 132 also provides that if an employer requires an employee to submit to a screening test within the first 30 days of employment, the employee shall have the right to submit to an additional screening test, at his or her own expense, to rebut the results of the initial screening test. The employer shall accept and give appropriate consideration to the results of the second screening test.

The 30-day window does make sense considering the nature of THC (marijuana) elimination times.

Marijuana Vs. Other Drugs (Difference In Drug Elimination Kinetics)

The submission of the second screening test within 30 days seems especially reasonable considering the well-known double standards when it comes to marijuana vs. other drugs.

Due to the THC molecule in marijuana being soluble in oil (and not in water like the majority of other drugs), it takes a much longer time for THC and it’s metabolite THC-COOH to leave the body.

To have a valid estimate, you should refer to our article on How Long Does Weed Stay In Your System.

In short, it can take up to 90 days for marijuana to leave your body. Other (harder) drugs like amphetamines, heroin or cocaine are water-soluble and can be detected in human urine for up to 10 days.

difference between elimination time of marijuana vs other drugs
Marijuana can stay in your system for 90 days. Other drugs leave your system in less than 10 days.

If an employee has the additional 30 days to supply his or her urine sample, the likelihood for passing a drug test for marijuana increases tenfold.

Though not perfect the Nevada drug test ban bill seems to take into consideration the difference between testing positive for THC and the effect THC has on human cognition while not ‘being high’.

Recognition That ‘Being THC Positive’ Is Not Equal To ‘Being High’

There is a major difference between the following two things:

  1. Being THC positive.
  2. Being ‘high’.

Is very common for a person to test ‘THC positive’ on a urine drug test 30 days after his or her last smoked joint. However, everybody who ever smoked weed can tell you that you can’t be ‘high’ for 30 days, no matter how much weed you smoked.

In fact, according to the study on Time profile of serum THC levels in occasional and chronic marihuana smokers after acute drug use, the ‘peak euphoria is delayed compared to THC peak blood concentration and physiological and behavioral effects return to baseline within 3-5 hours.’ The article in question goes further in implications of acute marijuana effect for driving motor vehicles.

It is clear that having an individual who smoked cannabis once can feel a ‘high’ for about 3-5 hours but still be positive for THC (standard urine drug test) for 30 days. His or her cognitive ability is not affected by marijuana for 99% of that time.

Is There A Loophole In The Drug Test Ban?

Nevada is the 1st state to implement the drug test ban in 2020. However, Assembly Bill 132 is a bit vague as far as exceptions to the drug test ban are concerned. Especially the last exception stating ‘(the law doesn’t apply to) those who, in the determination of the employer, could adversely affect others’ safety,’ can be seen as problematic.

It is perfectly reasonable for employees who can with their actions actively affect others’ safety to be kept to a higher standard. However, even disregarding that being positive for marijuana is not necessarily equal to one’s cognitive ability being questionable, there seems to be a bit of a loophole in Nevada’s drug test ban.

The possibility of employees action adversely affecting other’s safety is determined by the employer. What is to stop an employer who refuses to hire an individual who has failed a marijuana drug test to argue that the job in question can adversely affect other’s safety?

The bill does allow the argument to be vague; normally we would think that ‘ensuring safety’ means ‘safety from physical harm’. However, the bill doesn’t specify what kind of safety. What if an employer argues that hiring a THC positive person can negatively affect the financial safety of the company and, by extension, the financial safety of all the current employees?

A Step To Social Acceptance

The bill is not perfect; however, it nonetheless recognized the drug elimination difference between marijuana and other drugs and is a clear step to social acceptance of marijuana users.

With all the talk and action about marijuana legalization, being able to use marijuana and have a job is a crucial next step and Nevada is the first state to make it.

Studies and sources:
(1) Smith ML, Shimomura E, Paul BD, Cone EJ, Darwin WD, Huestis MA. Urinary excretion of ecgonine and five other cocaine metabolites following controlled oral, intravenous, intranasal, and smoked administration of cocaine. J Anal Toxicol. 2010;34(2):57–63.
(2) Crean RD, Crane NA, Mason BJ. An evidence based review of acute and long-term effects of cannabis use on executive cognitive functions. J Addict Med. 2011;5(1):1–8.
(3) Behavioral and Pharmacokinetic Profile of Indole-Derived Synthetic Cannabinoids JWH-073 and JWH-210 as Compared to the Phytocannabinoid Δ9-THC in Rats Libor Uttl, Ewa Szczurowska, Kateřina Hájková, Rachel R. Horsley, Kristýna Štefková, Tomáš Hložek, Klára Šíchová, Marie Balíková, Martin Kuchař, Vincenzo Micale, Tomáš Páleníček Front Neurosci. 2018; 12: 703.

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