New legislation in Nevada makes it the first state to prohibit employers from disqualifying candidates because of a failed drug screen for marijuana. Governor Steve Sisolak signed the new law on June 5. It will take effect on January 1, 2020.
Since the state passed its recreational marijuana use laws in 2016, the Governor felt the law was necessary to protect job seekers who use cannabis recreationally but may have been barred from employment because of their legal use of the substance.
It’s one of the latest developments around marijuana in the workplace impacting employers across the country.
There are exceptions to the law, which include public safety professionals, like firefighters and emergency medical technicians; employees who operate a motor vehicle and are required under federal or state law to submit to drug screening tests or if the employer can show there could be an adverse effect on the safety of others. Also excluded are jobs funded by a federal grant.
For jobs where an employment contract or collective bargaining agreement is in place, the law will not override the provisions of those contracts. Nor will it override any existing federal law.
If an employer requires drug screening during the first 30 days of employment and a new hire fails the test, the new law requires the staff member be allowed to submit to an additional screening, at their own expense to potentially rebut the results. The legislation states employers “shall accept and give appropriate consideration to the results of such a screening test.”
New York City recently passed a bill banning employers from using marijuana screening tests as a condition of employment. In Maine, employers are prohibited from discriminating against job seekers that use marijuana, but Nevada is the first state to specify drug testing results cannot be used as a reason to exclude.
As more states and municipalities make recreational and even medicinal cannabis use legal, employers are walking a tightrope of hiring candidates that can perform the work without putting themselves, others or property at risk.
The Nevada law may be sufficiently vague by excluding “those who, in the determination of the employer, could adversely affect others’ safety,” but challenges will likely be seen as job seekers and businesses clash over what constitutes safety.
Another issue for employers is that drug screening isn’t able to differentiate between those who’ve used marijuana over the past weeks and those who’ve lit up on the way to the test. With the responsibility for the safety of their business and facilities in the balance, new marijuana laws are challenging employers to respect the right to legal recreational use and their duty to provide a safe work environment.
As more mainstream products become available to mask the outward appearance of marijuana use (eye drops, etc.), companies will need to be vigilant in their efforts to assure employees are not performing in an impaired state. The new Nevada law, and others around the country, do not require employers tolerate substance use on the job. Whether it’s alcohol, marijuana, prescription medications or even illegal drugs, employers still have the right to screen staff members they believe are impaired on the job and take appropriate disciplinary action.
As more states and local governments shift to legalization of cannabis, employers will continue to be challenged to balance an employee or candidate’s rights against their own need to provide a safe and productive work environment.
This article is intended only for informational purposes. It is not a substitute for legal consultation. While we attempt to keep the information covered timely and accurate, laws and regulations are subject to change.