United States: Nevada Applicants And New Employees With Positive Marijuana Test Results Will Receive Legal Protections

Last Updated: July 5 2019
Article by Neil C. Baker, Dale L. Deitchler and Wendy Medura Krincek

Beginning January 1, 2020, new legislation in Nevada will require employers to think carefully about whether and which applicants should be tested for marijuana.  Under A.B. 132, employers are generally prohibited from withholding a job offer because a candidate tests positive for marijuana use.  Marijuana testing limitations will also apply to testing of employees within their first 30 days of employment.  As detailed below, the law does not apply to certain types of positions.  Nevada employers with current marijuana testing programs, and those considering implementation of marijuana testing, will be faced with a number of strategy and policy decisions as they prepare to comply with the new law.1

Prohibited Marijuana Testing Practices for Applicants and New Employees

The new law, which contains no express private right of action, generally prohibits Nevada employers from failing or refusing to hire an applicant because the applicant "submitted to a screening test and the results of the test indicate the presence of marijuana."  A "screening test" is defined as "a test of a person's blood, urine, hair or saliva to detect the general presence of a controlled substance or any other drug."

While nothing in A.B. 132 generally prohibits employers from terminating or otherwise disciplining current employees who test positive for marijuana, some protections will extend to new hires within the first 30 days of their employment.  Specifically, if an employee not categorically excluded from the law's protections, as discussed below, is asked to submit to a screening test in that initial 30-day employment window, the employee will have "the right to submit to an additional screening test, at his or her own expense, to rebut the results of the initial screening test."  If such an employee submits a rebuttal test result, the employer must "accept and give appropriate consideration to the results of such a screening test."

Significantly, aside from the limited right to rebuttal tests for new employees, the only employment actions affected by A.B. 132 are hiring decisions.  Notably, the law does not prohibit pre-employment marijuana testing entirely.2  

Positions Excluded from These Protections

A.B. 132 contains two types of exclusions from its protections.  First, it provides a partial exemption for certain positions from the law's applicant-testing prohibitions, but not from the new hire/employee marijuana testing limitations.  Second, it sets forth a categorical and complete exclusion from all protections where those protections conflict with employment contracts, federal law, or federal grant requirements.  

  1. Positions Exempt from Applicant-Testing Protections, Including Jobs "Determined" By Employers to Be Safety-Sensitive

The new law will permit employers to continue rejecting marijuana users who apply for certain positions, including those determined by employers to be safety-sensitive.  In particular, employers may reject applicants who test positive for marijuana if they apply for any of the following types of positions:

  • a firefighter or emergency medical technician, as each are defined in Chapter 450B of the Nevada Revised Statutes; or
  • a position requiring an employee to operate a motor vehicle, if federal or state law would require the employee to submit to screening tests for that position; or
  • a position that, "in the determination of the employer, could adversely affect the safety of others."

The legislative history suggests that the last of these categories is intended to serve as a "catchall piece" including "all the other types of job classifications where the employer feels marijuana [use] could be a safety risk."  Nevertheless, employers should proceed cautiously and consider seeking legal counsel before invoking the "catchall" exemption.  Despite the favorable express language tying the exemption to an employer's "determination," the scope of the exemption is, as of yet, untested and unclear.

  1. Categorical/Full Exclusions from Protection
  1. Contract-Based Exclusions

A.B. 132 explicitly states that its protections do not apply "[t]o the extent they are inconsistent or otherwise in conflict with the provisions of an employment contract or collective bargaining agreement" (CBA).  Accordingly, employers with existing or to-be-negotiated employment contracts or CBAs, that are evaluating marijuana testing programs, should look for favorable language and/or develop negotiation strategies providing contractual flexibility regarding adverse action and marijuana test results.  If a contract or CBA conflicts or is inconsistent with the new Nevada law, those documents will control, and neither the applicant nor new employee marijuana testing restrictions will apply.

  1. Federal Funding Via Grants and Federal Law Exclusions

Employment positions funded by a federal grant are excluded from the protections of A.B. 132.  Likewise, neither the prohibitions on adverse action toward applicants based on positive marijuana test results, nor the testing limitations for employees in their first 30 days of work, apply "[t]o the extent that they are inconsistent or otherwise in conflict with the provisions of federal law."

Ongoing Applicability of Nevada's Other Marijuana Laws and Lawful Consumable Products Laws

It bears emphasis that the new testing law does not affect employers' compliance obligations with respect to either Nevada's other marijuana laws or its lawful consumable products statute. 

Under Nevada's medical marijuana law, employers are not required to accommodate medical use of marijuana in the workplace or modify the job or working conditions of a medical marijuana user based on the reasonable business purposes of the employer.  Employers must attempt to reasonably accommodate medical marijuana users, however, if an employee holds a valid Nevada registry identification card and if accommodation would not pose a threat of harm, impose an undue hardship on an employer, or prohibit an employee from fulfilling his or her job responsibilities. 

In addition, employers should bear in mind that they also remain obligated to comply with the antidiscrimination provisions of Nevada Revised Statutes § 613.333.  Under that statute, it is an "unlawful employment practice" for an employer to "[f]ail or refuse to hire a prospective employee" or "[d]ischarge or otherwise discriminate against any employee . . . because the employee engages in the lawful use in this state of any product outside the premises of the employer during the employee's nonworking hours, if that use does not adversely affect the employee's ability to perform his or her job or the safety of other employees."  An early draft of A.B. 132 purported to clarify that the "consumption of marijuana" in a manner that "complies with the laws of this State" is a "lawful use of a product" for purposes of NRS § 613.333.  Yet that language was eliminated from the final bill as enrolled and delivered to Governor Sisolak.   

What Should Employers Do before January 1, 2020?

Before the new law is effective, Nevada employers should evaluate their approach to pre-employment marijuana testing, weigh risk tolerance, and assess structural changes to any existing or pending marijuana testing program.  Employers face a spectrum of options, depending on their risk tolerance.  Potentials options include eliminating pre-employment testing for marijuana altogether, only conducting pre-employment testing of marijuana for positions that fit one of the exclusions, etc.

Employers that conduct pre-employment testing for marijuana should take this opportunity to identify positions covered by the exemptions provided by A.B. 132, including those that could affect the safety of others.  Nevada employers may wish to revisit and explore changes to testing protocols—for applicants, new hires within their first 30 days, and longer-term employees.  Employers should review employment contracts and CBAs and negotiate such agreements in a manner that best furthers the employer's objectives.  Employers with specific questions about A.B. 132, or other pertinent Nevada laws, should consult knowledgeable employment counsel.

Footnotes

1 Of course, marijuana continues to be an illegal drug under federal law.

2 As a result, A.B. 132 leaves open the possibility, with some risk, that employers can continue pre-employment testing of applicants for marijuana and onboard those applicants testing positive with imposition of employment conditions. It also continues to allow testing (with potential repercussions) for current employees. Any such testing remains subject to the Nevada medical marijuana and off-duty conduct statutes.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions