On November 8, 2016, voters approved Nevada’s Initiative to Regulate and Tax Marijuana (more commonly known as Question 2) by a margin of 54 percent to 46 percent. When codified and enacted, this law will be cited as the Regulation and Taxation of Marijuana Act. This act will become effective on January 1, 2017, and Nevada’s Department of Taxation will be required to adopt all regulations necessary to execute the act’s provisions no later than twelve months after this date. The passage of Question 2 places Nevada in a group of eight states (plus the District of Columbia) that will allow for recreational use of marijuana, four of which passed such initiatives in the November 8, 2016 election.

For all of the attention concerning the increasing trend of states decriminalizing the use of marijuana (whether for medical or recreational purposes), the effect of this trend for employers in Nevada is likely to be minimal. Notably, the act does not prohibit a “public or private employer from maintaining, enacting, and enforcing a workplace policy prohibiting or restricting actions or conduct otherwise permitted under … this act.” Further, under federal law, marijuana remains a Schedule 1 substance under the Controlled Substances Act. As recently as August of 2016, the Drug Enforcement Administration announced it would keep marijuana illegal for all purposes. To date, partially because of the federal government’s consistent stance on marijuana, there have not been any court decisions overturning a termination based on the legal consumption of marijuana. All in all, the act—along with existing federal law—preserves Nevada employers’ rights to maintain a drug-free workplace. 

While it is impossible to predict to what extent usage amongst Nevada employees will be affected by legalization, examining usage trends in neighboring states may provide some insight. A recent National Survey on Drug Use and Health indicated a 5 percent increase in marijuana consumption among Colorado adults aged 18–25 compared with the year prior to legalization in Colorado. Naturally, with the prospect of increased marijuana consumption within Nevada’s workforce, some employers may want to examine their anti-drug policies and update them to the extent necessary.

While Nevada does not have statutory laws regulating employers’ drug-free workplace policies, it would be wise to be cognizant of the following guidelines:

  • Employers may want to publish and educate employees on the organization’s drug-free workplace policy. At a minimum, such policies may include a statement indicating that the organization will not tolerate drug or alcohol abuse in the workplace, define what constitutes an infraction of work policy regarding substance abuse, and explain the potential consequences for any violations of the policy.
  • Nevada employers are allowed to conduct workplace drug testing under limited circumstances, such as: 1) upon a contingent offer of employment; 2) after an on-duty motor vehicle accident; 3) upon return to duty from a substance abuse treatment program; 4) if there is reasonable suspicion of impairment; or 5) if there is any applicable federal law that requires testing.
  • Consider providing information on the availability of treatment and rehabilitation services if your organization makes any available through its employer assistance program (EAP).
  • Organizations with 15 or more employees may want to note the possible influence of the Americans with Disabilities Act in the treatment of employees with drug or alcohol abuse issues.

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Drug Testing

Ogletree Deakins understands that employers face complex and nuanced issues when implementing and enforcing drug and alcohol testing and substance abuse policies. Drawing on decades of experience advising and defending drug testing laboratories, and public and private employers across the country and internationally, our attorneys provide highly responsive legal service

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