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The Problem with Marijuana
By Rob Parker
HR interviews a candidate who appears to be the most suitable and qualified person for an open position at the company. A conditional job offer is made and the candidate is given instructions on how to proceed with her pre-employment drug screen. The candidate informs HR that she will have a positive result for marijuana and reveals her medical marijuana card. HR requests that she obtain the pre-employment drug screen nevertheless.
The results were, in fact, positive for marijuana. HR informs her that the company has a zero-tolerance drug policy and that they will have to rescind their conditional job offer. The candidate informs HR that they will be hearing from her attorney. HR consults with the Executive Director who wants to know more about what happened. After discussing it with other members of management they decide to hire the candidate in spite of the positive drug test to avoid possible litigation.
What would you do in this situation?
Possible options:
- Comply with your zero-tolerance policy and rescind the offer based on the fact that marijuana, medical or recreational, is still consider a Category 1 drug and is prohibited by federal law and deal with the threat of litigation if it happens.
- Consider the obligation to reasonably accommodate the person under state law by having an interactive discussion with the person to see if such an accommodation can be made.
- Do what this employer did and hire the person because 1) she was not impaired during the interview; 2) she was the most qualified candidate; and 3) it is a tight labor market and qualified applicants are scarce.
Legalized marijuana and a tight labor market are causing Nevada employers to reconsider their zero-tolerance policies and whether they should be testing for marijuana at all. Recent surveys reveal that 7% of Colorado employers have stopped pre-employment testing for marijuana and 3% have completely removed marijuana from their testing panel.
If you decide to rethink your zero-tolerance policy, you may want to consider whether you receive federal funds, which may be impacted by your decision. Also, training on reasonable suspicion drug testing is a good idea so supervisors can learn to recognize impairment. You should consult with NAE (or your employment attorney) before making policy revisions to understand all the implications.
Since 1938, the Nevada Association of Employers (NAE) has been providing Nevada companies with services and support to help them successfully operate and grow their businesses. NAE continues to offer time-tested services and support for our members. All the while, we employ innovative practices that keep our clients at the forefront of the ever-changing business climate.
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Nevada Association of Employers (NAE) has compiled a collection of commonly used HR forms, checklists, policies, and employer guides to help Nevada businesses manage workplace compliance and HR administration.
Whether you are looking for an employment application, employee file checklist, payroll deduction form, performance appraisal form, or FLSA exemption worksheet, NAE provides resources designed to support employers with day-to-day HR operations.
These tools help employers maintain consistent documentation practices and ensure workplace policies align with federal and Nevada employment regulations.
Employers who need additional guidance on HR compliance may also benefit from services such as HR Hotline support or professional HR audits, which help identify potential compliance gaps before they become legal issues.
Access HR Forms Through the Member Portal
NAE members can access these HR resources through the Member Portal (login required). The portal includes downloadable HR forms, customizable policies, and other templates that help employers manage employee documentation and HR procedures efficiently.
These resources are designed to work alongside other NAE compliance tools, including the HR Compliance Checklist and Employee Handbook Review services that help employers maintain legally compliant workplace policies.
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If you don’t see the HR resource you need, NAE’s HR professionals and employment law attorneys are available to help.
Members can request guidance or customized resources through services such as Legal Hotline or employment legal services, which provide expert advice on workplace compliance and HR documentation.
Contact Nevada Association of Employers to speak with our team about your HR needs.
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