Legal Insider: States Began to Bar Employment-Related Marijuana Screening Tests

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Some states are moving to not only legalize marijuana but also bar drug screening in employment for its use.

Nevada is such a state. Beginning next year, most employers in the State of Nevada will not be able to turn down a job applicant solely for failing a marijuana drug test. This is the result of a new state law, Nevada Assembly Bill 132, that is set to become effective on January 1, 2020. There is some discussion that a similar law will also be coming to Colorado and other jurisdictions soon.

Nevada’s New Law

The new law will not stop employers from testing job applicants for marijuana usage, and it will not bar them from refusing to hire applicants that test positive for other drugs. There are some exceptions to the new law.

It will not apply to physicians, emergency medical technicians, firefighters or those that have job requirements involving driving and in positions which could adversely affect the safety of others. A copy of the new law can be found here. It is likely to be the first of many similar laws that are enacted in states that have legalized marijuana usage.

Virginia Law Still Criminalizes Marijuana Use

While Nevada and other states have moved forward with decriminalizing marijuana usage and beginning to bar employment-related drug screening, Virginia still criminalizes marijuana usage. Virginia employers remain able to terminate employees for marijuana usage. Attorney General Mark Herring recently suggested changing these laws, which could be the start of a long process in Virginia.

Federal Law Remains Unchanged

Individuals should keep in mind that even as these states legalize certain drugs, these state laws have no effect on federal drug laws barring usage. Furthermore, federal employees and security clearance applicants/holders are still barred and can be fired for marijuana usage.

I suspect that this will likely change in the next 5-10 years, but at present federal employees and security clearance holders can lose their security clearances with even one-time use in a state or jurisdiction that has legalized marijuana.

Conclusion

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