Man hitting vape, 420

Two new “breathalyzer” tests being developed by the University of Pittsburgh and Hound Labs, respectively, are set to hit the market in 2020 and are being marketed as the solution that employers have been waiting for. The devices, similar to breathalyzers used to measure breath alcohol content, use advanced technology to detect and measure recent marijuana use.

Sounds great, right? Finally, a test that allows employers to determine, in real time, whether an employee is impaired at work.

Currently, marijuana is legal for recreational use in 11 states and medical use in 33 states (plus Washington DC). Nevada law permits both uses.

With the acceptance of marijuana use growing and laws regarding marijuana changing, employers who in the past have relied on federal law in enforcing zero-tolerance drug policies are having to review and reassess due to changing state laws. That includes balancing the concern over safety-sensitive activities, like driving, operating heavy machinery, or handling hazardous materials, with compliance with state laws that provide protections (although limited) to marijuana users.

No Standard for Impairment for Marijuana

According to their marketing, these tests will be able to detect marijuana usage within hours and return results within minutes. In comparison, current testing — urine is most common — shows usage within the last several days or weeks; sometimes even longer if the person is a long-time user. These new tests show promise for a more definitive determination of a person’s impairment right now.

However, there is currently no legal standard in employment for impairment based on the amount of THC detected on someone’s breath or in someone’s system. Therefore, unless a legal standard for marijuana impairment was implemented, employers would be in the same position they are now with current testing methods. They could show presence in system, but not impairment.

Nevada Law Would Likely Limit Use of Such Devices

Nevada law does not specifically address drug testing in private employment. This means that drug testing in private employment is not prohibited or restricted by state law unless it violates some other law (i.e. it is discriminatory or violates the employee’s privacy rights, etc.). However, Nevada does regulate how drug testing is conducted and by whom.

Under Nevada law, instant drug testing or point-of-collection testing (POCT), which is what these breathalyzers would likely be, can only be performed by qualified personnel of a licensed medical laboratory. That would limit their use by employers for on-the-spot drug testing. The appeal of these new tests are just that — use on-the-spot, by company personnel, to determine if someone is under the influence of marijuana and unable to work.

Unless the law were to change with the introduction of these devices, employers could face an uphill challenge in using them in the way that most employers would like to use them — as a cost effective alternative to having a drug testing company administer the test.

NAE will continue to keep members updated on the latest developments in the law surrounding marijuana and drug testing. Make sure you are on our email list so you do not miss out.