United States: High Times For Employees In Nevada: New Restrictions On Preemployment Drug-Screening Of Applicants Who Test Positive For Marijuana

Beginning in 2020, Nevada employers can no longer refuse to hire a job applicant for failing a preemployment marijuana screening test. The law, known as "AB132," became effective on June 5 and is the first of its kind among the states. Although the law is limited in scope to drug screenings involving the presence of marijuana, it has broad implications for employers operating in Nevada (and potentially for employers in other states).

The full text of the law can be viewed here.

Background

In general, AB132 prohibits all employers within Nevada from refusing to hire an applicant whose preemployment drug screening indicates "the presence of marijuana." The law also requires employers to "accept and give appropriate consideration" to a second drug screening, taken at the employee's own expense, "to rebut the results of an initial screening test."

A few job positions are excepted from this new law, including (1) firefighters, (2) emergency medical technicians, (3) motor vehicle operators for whom a drug screening is required by law and (4) any position that, "in the determination of the employer, could adversely affect the safety of others."

The law does not prohibit employers from refusing to hire applicants whose drug screenings indicate the presence of drugs other than marijuana. Also, the law does not change an employer's right to maintain a drug-free workplace or to prohibit the use of marijuana at work. Finally, the law does not apply to the extent that it conflicts with the provisions of an employment contract or collective bargaining agreement, or to the extent that it is "inconsistent or otherwise in conflict with" federal law.

A.B. 132, 2019 Leg., 80th Sess. (Nev. 2019).

Unresolved Issues

As with many new bills, the current language in AB132 leaves several issues unresolved. These include details regarding what type of positions qualify for the safety exception, how employers can contract around the law, and whether and to what extent the law interacts with the federal Controlled Substances Act. It is anticipated that these and other issues will be worked out by the courts and in the legislature in the coming months.

Growing Trend

If recent activity is any indication, Nevada is at the forefront of a growing trend among states and local governments to support the decriminalization of marijuana with employer regulations.

For example:

  • New York City Council passed a similar bill in April, prohibiting employers from requiring applicants to pass a marijuana screening test prior to employment.
  • Maine also passed legislation in 2018 that prohibits employers from discriminating on the basis of marijuana usage, without restricting preemployment drug screening.

These laws are not only indicative of nationwide efforts to decriminalize the use of marijuana, but also representative of an ideological shift among the states – one in which legislators are increasingly likely to legalize marijuana for recreational use and are being forced to consider the opportunities it presents for economic gain. In the words of Nevada Gov. Steve Sisolak, the new law helps to "ensure that the door of economic opportunity remains open for all Nevadans."

Perhaps more interesting, AB132 comes on the heels of equally radical efforts to decriminalize other controlled substances, including magic mushrooms, in such places as Denver, Colorado. Employers, beware!

Conclusion

For now, Nevada employers should prepare for the law's implementation on Jan. 1, 2020, by reviewing any preemployment drug screening practices currently in place, and by considering whether any of their job positions could potentially "adversely affect the safety of others." Any decision regarding an applicant's candidacy for employment should also be supported by proper documentation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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