By Amanda Current
Note: This article is provided for educational purposes only and should not be relied upon as legal advice. The reader retains full responsibility to ensure compliance with all applicable laws relative to drug testing.
Let’s talk Nevada. It’s not all gambling, elaborate shows, and careless fun. Behind all that sparkle is a struggling job force with the highest unemployment rate in the country at 7.7% (the national rate was 5.4% in July). But this summer, the state added back 4,800 jobs, so there’s never been a better time to get reacquainted with Nevada’s drug testing laws as they get their economy moving again.
- Drug Testing Law Type: Friendly. Nevada does not have a general drug testing statute; however, there is a mandatory law that restricts pre-employment testing for marijuana and testing that takes place within the first 30 days of employment. Additionally, NAC 652 defines and regulates point-of-care testing. As well, there are workers’ and unemployment compensation laws in Nevada that contain their own drug testing requirements. Employers are not required to comply unless they want to be able to move to deny workers’ or unemployment compensation claims based on positive drug test results.
- Workers’/Unemployment Compensation Denial: A person is ineligible for benefits if s/he was discharged from her/his last or next to last employment for misconduct connected with the person’s work. The law does not specifically mention intoxication or drug testing (Nev. Rev. Stat. 612.385).
- Marijuana Laws: While drug testing is permitted, an employer may not fail or refuse to hire a prospective employee because s/he tested positive for marijuana. An employer must also permit an employee to submit to confirmatory testing to rebut an initial positive result. This does not apply to applicants for the following positions: firefighter, emergency medical technician, positions that require an employee to operate a motor vehicle and for which state law or federal regulations require the employee to submit to screening tests, and any position that, in the determination of the employer, could adversely impact the safety of others. The law went into effect January 1, 2020 (Nevada Rev. Stat. 613).
- A Major Case Law Decision: Nevada Employment Security Department et. al. v. Cynthia Holmes: In 1993, Cynthia Holmes was terminated after testing positive for cocaine during a random drug test that used radioimmunoassay hair analysis (“RIA”) as its methodology. When Holmes filed for unemployment soon after, she was denied because her termination was due to workplace misconduct. In addition to addressing unemployment compensation, drug use, and misconduct, the case ruling also rules that hair testing is a scientifically acceptable method of drug testing. The applicant’s ingestion of cocaine, subsequently proven by the hair screening and confirmatory GC/MS test, constitutes misconduct within the definition of NRS 612.385.
- How to Test: Nevada Administrative Code 652 defines and regulates “point-of-care” testing. It defines point-of-care testing as, “a portable laboratory testing system, analytical instrument, kit or procedure that may be transported to the site of a patient in order to perform point-of-care tests.” The use of a point-of-care testing device requires compliance with several conditions including use of an FDA-cleared device, the services of a qualified technician to oversee the test, and that the location where the test is conducted meets certain conditions in the state’s laboratory licensing law.
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