Hunton Employment & Labor Perspectives

On June 5, 2019, Nevada Governor Steve Sisolak signed into law Assembly Bill No. 132 (“A.B. 132” or the “new law”), which is the first state law to curb pre-employment marijuana drug tests.  The new law has two primary effects: 1) it makes it unlawful for Nevada employers to fail or refuse to hire a prospective employee because the applicant submitted to a screening test and the results of the test indicate the presence of marijuana; and 2) it provides employees who test positive for marijuana with the right to, at their own expense, rebut the original test results by submitting an additional screening test within the first 30 days of employment. 

Exceptions

A.B. 132 does not apply to applicants who apply for certain positions. Specifically, the new law will permit employers to reject applicants who test positive for marijuana if they apply for positions as: 1) a firefighter or emergency medical technician, as each are defined in Chapter 450B of the Nevada Revised Statutes; 2) 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 3) a position that, “in the determination of the employer, could adversely affect the safety of others.”  The law does not provide further guidance as to what factors employers should consider when making the determination as to whether a job classification qualifies as a safety risk.

Moreover, the new law provides for certain contract-based exceptions.  A.B. 132 does not apply if it conflicts with the provisions of an employment contract or a collective bargaining agreement, or if it is inconsistent with provisions of federal law.  However, A.B. 132 is silent as to whether an employer may bargain to include such drug testing in a collective bargaining agreement or employment contract.  Further, the law does not apply to positions funded by a federal grant, though many federal contractors and all federal grantees are still required to comply with the Drug Free Workplace Act.

Impact on Employers  

Nevada employers should ensure their policies and handbooks are updated and compliant with A.B. 132.  Specifically, employers should revise pre-employment hiring procedures to account for employees’ rights to rebut a pre-employment drug test that is positive for marijuana.  Moreover, employers with existing employment contracts or collective bargaining agreements should consider the need for flexible language regarding marijuana testing and adverse action.

Employers should also review and consider whether to revise drug testing procedures to ensure they do not violate the new law.  For instance, marijuana and tetrahydrocannabinols (the active ingredient in marijuana) should be removed from the drug testing panel.  In addition, employers should also review their job descriptions to determine which positions, if any, fit into one of the law’s exceptions for which marijuana testing can still be required.  Further, employers should provide training to human resources personnel, as well as supervisory employees, on any changes made to policies and practices as warranted.  Finally, when an employee has chosen to rebut an original drug test with a subsequent test, employers must accept and give appropriate consideration to the results of such a screening test.

National Trends

Nevada may be the first state government to pass legislation restricting marijuana drug testing, but it will likely not be the last.  Indeed, many municipalities, including New York City and Washington, D.C., have passed similar laws.  It stands to reason that other jurisdictions may follow suit in passing similar legislation with respect to workplace marijuana testing. This is a developing area, and employers should monitor these developments closely.

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