Effective January 1, 2020, Nevada became the first state to ban most employers from utilizing pre-employment testing for marijuana in their hiring practices. Employers and their insurers need to be cognizant of this new law and avoid the pitfalls associated with the commonly-accepted practice of making hiring decisions contingent on pre-hire drug tests.

AB 132, which was signed into law this past summer and made effective at the start of this year, provides that, except as otherwise provided by the law: “it is unlawful for any employer in this State to fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.” (AB 132, § 2(1).) It should be noted the above-quoted subsection does not apply to firefighters, emergency medical technicians, positions that require an employee to operate a motor vehicle and for which federal or state law requires drug screening, or to those positions the employer deems could adversely affect the safety of others. In addition, the pre-employment drug testing restrictions do not apply if they are inconsistent with federal law or collective bargaining agreements. Most candidates for union jobs can expect continued pre-hire testing for drug usage, including marijuana.

This is a significant step in the ever-growing acceptance of marijuana consumption in society and creates another potential liability minefield for employers and potential exposure for their EPL insurance carriers. Indeed, navigating the legal landscape as it pertains to marijuana possession and use is no easy task. On the one hand, marijuana use remains illegal under federal law, and, on the other hand, possession of small amounts of marijuana is legal in more and more states, including Nevada, although in the silver state, marijuana may not be consumed in public but may be consumed in a private residence.

The takeaway from AB 132 is a cautionary tale for employers who have regularly sought to make drug testing a part of their screening process for prospective employees. Best practices would dictate a mindful review of hiring practices and procedures to ensure compliance with Nevada’s new law, as it becomes the first state to prohibit employers from taking into account marijuana usage in hiring decisions for many positions. While employers still have every right to prohibit marijuana in the workplace, and to discipline an employee for consuming marijuana or for working impaired up to and including termination; they cannot reject a candidate because of a positive marijuana test.

In practice, the law provides that if an employer makes a worker take a screening test in the first 30 days of employment, the employee can submit to another test to rebut the results of the initial test. The employer is then required to give consideration to the results of the second test. After 30 days, employers can fire employees who test positive for marijuana.

In addition to reviewing hiring practices and drug screening protocols in particular, employers may also wish to revisit the job duties associated with the positions in their organizations to determine which positions may be exempt from the law because they could adversely affect the safety of others. Indeed, insurers and their agents should likewise consider taking steps to educate their policyholders on the dynamic employment laws they encounter on a daily basis.

As the national perspective changes on marijuana usage, Nevada is blazing the trail for the progressive treatment of said usage in everyday life and has planted the first flag toward that end in the employment arena.

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