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CARSON CITY, Nev. (AP) — Business groups on Wednesday voiced concern over a Nevada bill that would ban companies from disqualifying job candidates due to pre-employment marijuana use.

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The legislation, sponsored by Assemblywoman Dina Neal, prevents employers from refusing to hire a candidate who tests positive for marijuana use in a pre-employment drug screening.

The Democratic lawmaker said the legislation does not prevent an employer from taking action against an employee who uses marijuana after being hired. She said the effort is about equity and fairness and warned of creating a class of people who are cut out from work due to legally using marijuana before employment.

“Those people deserve not to be discriminated against because it is legal and it is lawful — just as lawful as getting drunk,” she said, speaking before lawmakers at a Wednesday afternoon hearing on the legislation. Neal said she is not advocating employees be allowed to show up drunk or high to work and argued the bill does not conflict with the Drug-Free Workplace Act.

Stronger opposition from business interests centered on a part of the bill that prohibits the employers from giving potential employees a character assessment, except in certain circumstances. The bill defines a “character assessment” as a test to evaluate personality and behavior traits, including the Myers-Briggs Type Indicator and the Caliper Profile.

The Assembly committee adjourned without taking a vote on the measure. State law prevents companies from discriminating against an employee who uses marijuana outside of work, as long as the use does not affect safety or job performance.

Talking to lawmakers, business groups acknowledged the complexity of marijuana and workers, but voiced concerns that not doing pre-employment testing would negatively impact safety.

Paul Enos, CEO of the Nevada Trucking Association, says pre-employment screenings and character assessments keep truck drivers to a high standard, something that’s important for safety. He said there is already a higher standard for truck drivers when it comes to alcohol.

Enos said those standards also protect employers from civil litigation. He submitted an amendment that would allow job candidates for “safety sensitive” positions to be disqualified for using marijuana before employment.

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For road safety, Enos said the trucking industry uses character assessments to look for certain personality traits. Impulsivity, for example, is associated with risk-taking behaviors and an increased crash risk, he said.

Suing a federal government entity for damages in a personal injury claim is more challenging than suing a private citizen or corporation. Under the doctrine of sovereign immunity, you are not allowed to sue a government entity without its express permission. The Federal Tort Claims Act (FTCA) is a highly complex law that allows specific types of lawsuits against a federal government entity and federal employees who have acted within the scope of employment while causing injuries, but certain strict rules must be followed.

For example, if you fall on a slippery patch in the post office because the janitor employed by the post office was negligent, you will need to follow the FTCA. Similarly, if you are a veteran suffering from a brain tumor and a Veterans Administration hospital doctor misdiagnosed you with PTSD, you would need to follow the FTCA to bring a medical malpractice claim.

Federal Tort Claims Act Procedures

The first issue is whether the Federal Tort Claims Act applies to your suit. If your suit is not specifically permitted under the FTCA, the doctrine of sovereign immunity will probably bar you from bringing it. The FTCA allows monetary compensation to be awarded when injuries are caused by wrongful (or negligent) actions of government employees. The law of the state where the act or omission occurred must permit the claim.

There are a number of exceptions. For example, independent contractors that the government hires cannot be sued under FTCA unless they are actually treated like employees. Negligent conduct that falls outside the scope of employment are not covered. Only rarely and in specific circumstances can claims of intentional misconduct be brought against police officers, for example.

The next step is to file an administrative claim. This claim should be filed with the federal agency that you believe is to blame for the negligence or misconduct. For example, if a postal truck hits you while you are walking the dog, your claim should be filed with the United States Postal Service. The federal government provides a check-the-box claim form that you can use, but it may be more prudent to retain a personal injury attorney with experience filing claims against the government.

The claim, including detailed facts and damages, should be filed as soon as possible, but certainly within two years from the time the claim arises. Moreover, since some states have a narrower statute of limitations for personal injuries and multiple entities, it may be important to file within a much shorter window, such as within a year of the accident. The government or another party may defend on the grounds that your claim is untimely if you wait to file.

After you file your claim, the agency has six months to respond under FTCA. The federal agency may agree your claim is appropriate and pay some or all of your damages. Or the agency may reject your claim or refuse to pay the total amount of damages you believe you deserve, in which case you have another six months from the date the agency mails the decision to file a lawsuit against the agency.


What if the agency doesn’t give you a decision within six months? At that point, you may go ahead with your lawsuit.Alternatively, you can wait until your administrative remedies are exhausted by waiting for the agency to give you a decision, even though the agency may take longer than six months. In multi-party cases involving nongovernmental defendants, you should not wait to consult an attorney about your civil suit, and you may not want to wait beyond six months for a decision to file a lawsuit.

Generally, your civil suit will be filed in the United States District Court where you live or where the actions giving rise to your claim happened. You cannot sue the federal government in state court or recover punitive damages. You may not ask for more money than what you requested in your administrative claim, unless there is newly discovered evidence.