Nevada Joins Growing List of Jurisdictions to Ban Pre-Employment Cannabis Testing

Effective January 1, 2020, it will be unlawful for Nevada employers to reject job applicants on the basis of a positive test for cannabis use. This follows a ballot initiative which made recreational marijuana use legal in the state in 2017, and places Nevada among a growing list of jurisdictions to prohibit employers from conditioning an offer of employment on a test for the presence of cannabis. Employers with a presence in Nevada are encouraged to revise their pre-employment screening and onboarding practices accordingly.

Assembly Bill 132 makes it unlawful for any Nevada employer to fail or refuse to hire a prospective employee because he or she tests positive for cannabis. However, employers may still require their employees to submit to tests for the presence of cannabis, and may discipline any employee who tests positive for the metabolite. An employee who tests positive within the first 30 days of employment has the right to submit to an additional drug test – at his or her expense – in an effort to rebut the initial results. If the employee’s re-test is negative for cannabis, the employer must “give appropriate consideration” to the results of that re-test.

Nevada’s protection of cannabis-using job applicants is not without exceptions. For example, Assembly Bill 132 does not apply in the following circumstances:

1. If its application would be in conflict with a collective bargaining agreement or an employment contract;
2. If its application is inconsistent with federal law; or
3. If the position sought is funded by a federal grant.

Likewise, Nevada employers may continue to test applicants for positions falling within the following statutorily defined exemptions:

1. A position as a firefighter, as defined by Nevada statute;
2. An emergency medical technician, as defined by statute;
3. A position which “requires an employee to operate a motor vehicle and for which federal or state law requires the employee to submit to screening tests;” and
4. A position that, “in the determination of the employer, could adversely affect the safety of others.”

Notes from the Nevada State Senate Committee on Commerce and Labor’s May 10, 2019, session addressing the legislation describe the final exemption as a “catchall piece that picks up all the other types of job classifications where the employer feels cannabis use could be a safety issue.” It remains to be seen the degree of latitude that employers will be granted with respect to this exemption, as it could prove to be an exemption which eviscerates the rule.

What Employers Should Do Now

In advance of January 1, 2020, Nevada employers should review existing drug testing protocols and policies and revise as necessary for compliance with Assembly Bill 132. Employers who subject new hires to pre-employment drug testing may wish to ensure either that applicants are not tested for cannabis or, alternatively, that any results of cannabis testing are not reported in the final testing result.

Multi-jurisdictional employers with a presence in Nevada are faced with the decision of either adopting a single drug-testing policy that applies to all locations or implementing a number of jurisdiction-specific policies. In either event, employers should continue to monitor cannabis-related legislation affecting their practices in all the jurisdictions in which they operate, as this is anticipated to remain a rapidly developing area of law.

This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations. Manufacturing, cultivation, distribution and possession of cannabis remains illegal under federal law and under certain state laws, and is strictly regulated in those states which have legalized medical or recreational cannabis.