Governor Steve Sisolak recently signed AB 132 into law for the State of Nevada. As an initial matter, this law does not become effective until January 1, 2020. While it is possible that the Nevada Labor Commissioner may publish additional guidance prior to that date, at this point businesses are forced to rely on the text of the statute itself to determine how their drug testing policies may need to change next year.
My present interpretation of the statute is that it will be unlawful for an employer to deny employment to a Nevada-based employee because the prospective employee tests positive for marijuana in a pre-employment drug screen. Importantly, this does not prohibit pre-employment drug screens, even if they include a test for marijuana metabolites, as long as the employee is not denied employment as a result of testing positive for marijuana. That being said, I think that the best practice would be to remove marijuana from any pre-employment drug screens so that a candidate who is denied employment cannot accuse a prospective employer of discrimination in the event that his or her test is positive.
Notably, the law does not prohibit testing current employees for marijuana. However, if the test is within the first 30 days of employment, the employee has the right to pay for and submit their own screening test, and the employer must “accept and give appropriate consideration” to any such rebuttal test. It is still ambiguous whether such a test will automatically overrule the initial employer test, or whether the employer may still terminate the employee despite giving the rebuttal “appropriate consideration.” However, I would likely advise an employer to error on the side of caution and accept an employee’s rebuttal test. Earlier versions of the law also contained language making it generally illegal to discriminate against employees who use marijuana when they are not on the job if it does not affect their work (see similar protections for the consumption of other legal productions like drinking and smoking cigarettes pursuant to NRS 613.333), however, that language was ultimately deleted from the final version of the law.
In addition, there are certain job functions for which prospective employees may still be denied employment as the result of a positive pre-employment test for marijuana, namely, (i) firefighters, (ii) emergency medical technicians, (iii) any occupation that requires an employee to operate a motor vehicle and for which federal or state law requires the employee to submit to a screening test, or (iv) any other function that in the determination of the employer could adversely affect the safety of others. The fourth category is obviously the most ambiguous. Until our courts interpret the provision, it would be wise for any employer who is relying on that exception to make sure that they carefully document the job descriptions of any such positions, make sure they have a cognizable explanation of why the job could affect the safety of others, and also inform potential candidates that you consider the role to be exempt and will be denying employment to those who test positive for marijuana on a pre-hire screen.
Finally, the law excludes the terms of any employment agreements or collective bargaining agreements. Hence, a prospective employee could agree to a different drug test policy subject to such an agreement. The law also does not apply to any job funded by a federal grant, and states that it is ineffective to the extent it is in conflict with the provisions of federal law.
Employers must realize that this law has yet take effect, and so there is presently little to no have guidance from the courts or state government. At this time, it is impossible to know with absolute certainly how the statute will be applied to any particular circumstances. However, I believe this interpretation is an objective view of the text of the statute and its legislative history.
If you are a Nevada employer who has questions regarding AB 132 and your current drug test policies, feel free to contact Jordan Wolff at Saltzman Mugan Dushoff, PLLC to discuss. This blog post does not constitute legal advice, and reading or interacting with this website does not create an attorney-client relationship.