Nevada Employers Cannot Refuse to Hire Based on a Positive Marijuana Test
On June 5, 2019, Nevada became the first state to make it unlawful for employers to reject job applicants who test positive for cannabis. The new law will go into effect on January 1, 2020 and fits with existing Nevada law, which already prohibits employers from discriminating against employees who lawfully use "products" outside of the work premises which do not adversely affect job performance or the safety of other employees. However, there are exceptions for certain jobs and employers can still require that employees not engage in cannabis use while on-the-job. Nevada is one of nine states that have authorized cannabis for adult use.
The exceptions to the law are as important as its protections. The law does not protect positions funded with federal money, since cannabis is still illegal under federal law. It also does not protect positions where it would conflict with the provisions of a collective bargaining agreement. Likewise, prospective firefighters, emergency medical technicians, applicants to jobs that require an employee to operate a motor vehicle, and applicants to jobs for which federal or state law requires employees to submit to a screening test, are exempt. Additionally, the law includes a carve-out for applicants to any job in which cannabis use, "in the determination of the employer, could adversely affect the safety of others." Employers will want to pay attention to how this carve-out is interpreted, and how much deference is given to employers who reject applicants on that basis.
While the bill protects job applicants, employers may still test new hires for cannabis use within their first 30 days of work. In cases where the test results are positive, the law allows employees to submit to a second screening to rebut those findings. However, the employee must pay for the second screening his or herself.
The Nevada law follows on the heels of a New York City ordinance that was approved earlier this year which prohibits employers from testing for marijuana for prospective employees. We discuss the specifics of the New York City ordinance in our prior blog post here.
Nevada employers should review their hiring policies to ensure compliance with the new law before it goes into effect this coming winter, and of course, train those making hiring decisions on the new law. Should you have any questions or if you would like to discuss how these changes will impact your company, please contact your regular Saul Ewing Arnstein & Lehr LLP labor and employment attorney.