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Is it Legal for a Company to Refuse to Hire Me if I Failed the Drug Screening?

The Nevada state legislature passed Assembly Bill 132 (AB132), which was signed by the governor in 2019 and became effective on January 1, 2020. Under this law, most employers in Nevada may not refuse to hire prospective employees because of a positive marijuana result in a pre-employment drug screening test. There are, however, several exceptions to this rule. Those that can be rejected for employment as a result of a positive drug test include EMTs, firefighters, and workers required to drive as a part of their employment. 

Assembly Bill 132

The law also provides new hires and employees who are mandated by their employer to submit to a drug screen within the first 30 days of employment to take a second test to rebut the first. This second screening can be done at a facility of the worker’s choosing and at the worker’s own expense. The law further provides that employers must accept and give appropriate consideration to the second drug screening test results provided by the employee. 

Under federal law, marijuana is still categorized as a Class I prohibited substance. As a result, if your potential employer is a federal government contractor, funded by federal grant dollars, or the federal government itself, then you may still be lawfully rejected as a new employee by the potential employee for marijuana use under federal guidelines. 

Employment Policies

Even with the rules under AB132, Nevada law still allows employers to continue to require random drug tests after the first 30 days an employee is on the job if the employee fails these random drug tests for reasons other than marijuana use. A company can do this if its policies and procedures provide for such actions. Moreover, a company’s policies regarding impairment while on the job due to drug or alcohol use, may continue to remain in force under AB132. 

Nevada employers may also continue their pre-employment drug screenings as well as consider other prohibited substances as justification for refusing to hire a potential new employee. 

If an employee is fired, or a potential employee not hired, due to the legal use of marijuana outside of the workplace, he or she may sue for damages against the company. A lawsuit brought against an employer or potential employer may seek monetary compensation for the following:

  • Lost wages and benefits as a result of the refusal to hire or firing;
  • Damages equal to the amount of lost wages and benefits;
  • A court order reinstating employment without loss of position, benefits, or seniority; or
  • A court order mandating an employer hire a prospective employee who was refused employment for marijuana use.

If the individual wins the case, the court may also award reasonable attorney’s fees and costs. 

Contact an Attorney

The changes under AB132 will bring to the employment landscape will likely result in litigation to resolve disagreements under the provisions of the new law. Employment law is fast changing and complicated, so contacting an attorney right away is critical. If you have suffered an injury in Nevada, contact H&P Law today. Our courtroom proven attorneys will fight for your rights and seek the best monetary compensation available under the facts of your case and applicable law. 

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