Nevada employers, like many across the country, are facing a conundrum. Should they stop testing job applicants for marijuana now that more states have legalized it for medicinal and/or recreational purposes?

Twenty-eight states and the District of Columbia have legalized medical marijuana. Eight of those states, including Nevada, have also legalized marijuana for recreational use. Nevertheless, the drug remains illegal under federal law. Marijuana is listed as a Schedule 1 drug, which is reserved for the most addictive and dangerous narcotics. This conflict between state and federal law is what makes this issue so frustrating for employers. To further compound the issue, state laws also vary, sometimes significantly, challenging employers operating in more than one state.

“Employers [in states with legalized marijuana] can either follow federal law, which says it’s illegal, or follow a state law, which says something different,” said Kathryn Russo, an attorney with Jackson Lewis. Employers will have to decide which option is right for their business.

Surveys are showing that employers in states that have legalized the recreational use of marijuana are gradually removing the substance from pre-employment drug testing panels. Marijuana testing by Colorado employers has slowly declined over the past two years; 7 percent of the state’s employers dropped it from pre-employment tests while 3 percent removed it from all employment drug tests. About 10 percent of companies in the Denver and Boulder areas removed marijuana from their pre-employment tests and 9 percent of companies from Pueblo did the same.

“I’ve definitely seen a drop,” Russo said. “Some clients have said it’s too much of a headache to drug-screen applicants for marijuana now that it’s legalized in their states. Employers have told me they’ve stopped doing pre-employment screening for marijuana because they think everyone’s going to turn up positive.”

Nevertheless, most employers are testing job applicants as well as employees for marijuana. Not testing is still in the minority.

Nevada employers should consider the nature of the job and the risks of their industry when contemplating whether to continue testing candidates for marijuana.

According to background screening and drug-testing providers, only 5% of employers say they accommodate marijuana use, 39% do not accommodate it, and 52% of employers say they don’t have a policy either way. Experts recommend that employers reserve the right to test for marijuana along with alcohol, prescription drugs and illicit drugs, given the employer’s obligation to ensure a safe workplace.

“The most important consideration is what type of job is the applicant applying for?” Russo said. “Drug testing is about safety.” If an applicant is applying for a dangerous job, like driving a forklift, the employer may not want the risk of having a recreational marijuana user in that role.

Whether you test for marijuana or not, experts agree that having a clear and comprehensive drug testing policy addressing marijuana is always a good idea. The policy should state what the organization’s position is regarding marijuana. Will you accommodate medical marijuana use? Are you going to have a zero tolerance policy towards marijuana? These questions will need to be addressed in your drug testing policy.

However, be advised that 10 out of the 28 states with compassionate care statutes that allow marijuana to be used for medicinal reasons require employers to consider accommodating the user. Nevada is one of those state. NRS 453A requires employers to make reasonable accommodations for the medical needs of an employee who uses marijuana for medical purposes except in certain circumstances.

Having a policy in place to address how you go about vetting a candidate, and whether or not accommodation can be made, is vital to mitigate risk from employment lawsuits and workplace accidents and injuries. he said.

Nevada Association of Employers (NAE) understands this is a difficult issue for employers. That is why NAE has drafted a sample drug policy specifically addressing marijuana use. Members of NAE can download a copy of our sample policy from the Member Portal on our website.