[co-author: Tracey Oakes O’Brien]

A new Nevada law will soon prohibit employers from denying employment to job applicants who test positive for marijuana use in pre-employment drug testing. What does this mean for your company and its safety sensitive positions?

Key points

• Effective January 1, 2020, Nevada’s newly enacted marijuana law prohibits employers from denying employment to job applicants who test positive for marijuana in pre-employment drug screening tests.
• The new law does not apply to certain jobs in the public safety and transportation fields.
• New employees who are required to submit to a drug screening test within the first 30 days of employment are entitled to submit to a second drug screening test at their own expense to rebut the results of the initial screening test.
• The law does not disturb an employers’ right to establish a workplace drug policy, including prohibiting the use of marijuana in the workplace. Employers should clearly establish and communicate their drug policies and should identify all jobs that are excepted from the law.

Beginning January 1, 2020, Nevada employers cannot reject a prospective job applicant based on the results of a pre-employment drug screening test in which the applicant tests positive for marijuana. Governor Steve Sisolak signed HB 132 into law on June 5, 2019 to address issues that arose following the legalization of marijuana for recreational use in 2016. The lingering presence of marijuana metabolites in the body that can be detected by blood, urine, saliva, and hair screening tests for a period of weeks to months after the use of marijuana has resulted in the denial of employment to individuals who lawfully use marijuana. The purpose of the law is to ensure that recreational users of marijuana are not penalized and denied employment due to pre-employment drug screening tests that detect the presence of marijuana based on past usage.

Limitations on the prohibition

Although the law prohibits employers from denying employment to lawful marijuana users based on pre-employment screening tests, the law does not apply to the following positions:

• A firefighter as defined in NRS 450B.071;
• An emergency medical technician, as defined in NRS 450B.065;
• An employee who operates a motor vehicle and for which federal or state law requires the employee to submit to screening tests; or
• A job that, in the determination of the employer, could adversely affect the safety of others.

In addition, the provisions of the law also do not apply if:

• The provisions are inconsistent with an employment contract or collective bargaining agreement.
• The provisions are inconsistent with federal law; or
• The position of employment is funded by a federal grant.

The law also provides limited protection for new employees who are required to submit to a drug screening test within the first 30 days of employment. Such employees, at their own expense, have the right to submit to an additional screening test to rebut the results of the initial screening test. The employer is required to “accept and give appropriate consideration to the results” of the second screening test.

What this means to you

Nevada’s new marijuana law is meant to address the negative effect of pre-employment drug testing on individuals who lawfully use marijuana but are adversely impacted by positive marijuana test results even though the individual is no longer under the influence of marijuana. The law does not disturb an employer’s right to establish their own workplace policy regarding marijuana use for their employees, and as such, employers may maintain a drug-free workplace policy. As a result of the new law, employers should adopt the following changes to their employment practices:

• Identify jobs that fall within the exceptions to the prohibition, including jobs with responsibilities that affect the safety of others. For such jobs, an employer may continue their practice of pre-employment screening for drugs, including marijuana.
• Modify job descriptions to identify all jobs that include a safety or transportation component and that will require a pre-employment drug screening test.
• For all jobs subject to the prohibition contained in the new marijuana law, consider omitting a pre-employment screening test for marijuana.
• Establish a clear policy for employees regarding drug use in the workplace, communicate the policy to employees, and identify the consequences for being under the influence of marijuana and other drugs while on the job, including whether they will be required to submit to a post-employment drug screening test.