No Nevada Drug Testing Laws:
Although many states have passed laws regulating or restricting an employer’s right to require drug testing, Nevada is not one of them. Nevada has no law addressing drug testing in private employment. This means that drug testing is not prohibited or unless it violates other legal provisions (such as a law prohibiting discrimination; see below).
Legal Claims for Drug Testing
Because Nevada law doesn’t put any limits on workplace drug testing, employees who believe their test was illegal will have to rely on other legal theories. For example, an employer may run into legal trouble based on who is tested or how the test is conducted. Here are some examples:
- Disability discrimination. The Americans with Disabilities Act (ACA) protects an applicant or employee who is taking medication for a disability. Some prescribed medications can result in a positive result on a drug test, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant's medication was legally prescribed for a disability, the company could be liable (unless the drug is medical marijuana).
- Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender– for drug testing could face a discrimination claim.
- Invasion of privacy. Even an employer that has a legitimate reason to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation, depending on the circumstances.
- Defamation. An employee might have a valid claim for defamation if the employer publicizes a false positive if the employer acts in bad faith and knew (or should have known) that the result was incorrect.
California Drug Testing Laws:
Employee Drug & Alcohol testing although- drug testing of employees is allowed in California, it may be justified only in very limited and strictly defined circumstances.
Pre-Employment and Immediately After Employment Testing California law -allows an employer to require a " drug test as a condition of employment after a job offer is tendered but before the employee goes on the payroll.
Routine or Random Drug Testing-You may not require employees to submit to random drug testing, except under certain narrowly defined circumstances.
Reasonable Suspicion Testing-The courts have been supportive of requiring alcohol or drug testing based on specific objective facts and rational inferences drawn from those facts that indicate drug or alcohol abuse, although these facts and inferences may fall short of probable cause. The courts have upheld testing of employees after a serious accident.
Public Employers & Drug Testing -In a 1997 case, the California Supreme Court refused to allow drug testing to the City of Glendale' s current employees who were applying for but did allow drug testing of applicants.
Private Employers & Drug Testing -In the case cited above, however, the court also considered drug testing and the right to privacy under the state Constitution in its decision, which would apply to private employers. In a 1994 California Supreme Court case, the court considered the privacy rights of college athletes being randomly tested for drugs by an intercollegiate athletic association.
Local Drug Testing Ordinances -San Francisco enacted a local ordinance relating to subjecting employees to drug testing. You may want to consult legal counsel before engaging in drug testing of employees in San Francisco.
Transportation Industry Alcohol and Drug testing both state and federal laws impose strict requirements on employers and operators engaged in commercial transportation, concerning alcohol and drug testing. Failure to comply with these regulations can result in significant penalties both to employers and to individual operators.
Disability Discrimination and Drug abuse the federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) do not protect individuals who currently use drugs. However, these laws protect persons who are former abusers of alcohol or illegal drugs and who have been successfully rehabilitated either through a supervised rehabilitation program or their program, and who no longer use illegal drugs.
Drug or Alcohol rehabilitation- if you have 25 or more employees, you must reasonably accommodate any employee who volunteers to enter an alcohol or drug rehabilitation program, provided the reasonable accommodation does not impose an undue hardship on you.
Drug-free Workplace policies whether or not your employees come under the requirements of state or federal drug-free workplace regulations, you may choose to create a drug-free workplace policy and include a drug-free workplace provision in your employee handbook.
The adult recreational use of marijuana- is legal in California. However, employers may continue to maintain workplace policies about marijuana. If you include a drug-free workplace policy, there are a set of guidelines that can help you keep the policy fair, clear and consistent.
California Drug-free Workplace Act -If you contract with or receive grants from the state of California, California's Drug-free Workplace Act of 1990 requires you to certify that you provide a drug-free workplace.Federal Drug-free Workplace Act If you enter into a federal contract for the procurement of property or services valued at $100,000 or more, or if you receive any federal grant, you must follow the regulations of the Drug-Free Workplace Act of 1988.
Wrongful Termination and Drug TestingCalifornia- courts have developed at least three wrongful termination theories, which employees who have been terminated for refusing to submit to drug testing can use as a basis for lawsuits.
Related ResourcesHRCalifornia- subscribers have access to several tools and services that help those who manage human resources to work through Drug and alcohol-related issues, including: