“Times They Are [Still] a-Changin'”: The Developing Landscape of Marijuana Legalization in Nevada and What This Means for Nevada Employers

by Swen Prior

As we reported last year, “Times They Are a-Changin’” [see article here]. However, given the monumental shift in public perceptions of cannabis, the Nevada legislature has followed suit and has now taken a giant step further into the marijuana morass. As a result, employers are now prevented from rejecting job seekers because they failed a test for marijuana use.

As many employers know, the various federal and state marijuana laws can be confusing and often contradictory. Indeed, the laws differ from one state to the next and, of course, marijuana use remains illegal under federal law (the Controlled Substance Act (CSA)). However, the rush toward legality across the country under state law remains, and Nevada is in the vanguard. While marijuana is still listed as a Schedule I drug under the CSA, it remains the most commonly detected illicit drug (Schedule I substance) in employment drug testing.

Consistent with its forefront position in the march to legalization of marijuana, the Nevada legislature and Nevada Governor Steve Sisolak took the unprecedented step of passing and signing Assembly Bill (AB) No. 132 into law on June 5, 2019. Consequently, starting January 1, 2020, unless an employer falls into one of the exceptions (discussed below), Nevada employers cannot reject an applicant because the prospective employee failed a marijuana screening test. The law specifically states that “[i]t 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). A copy of AB 132 can be found here.

While the law places restrictions on the use of post-offer/pre-employment drug screening, the law does not replace drug testing altogether. Indeed, Nevada employers can still apply drug tests, including testing for marijuana, under random or reasonable suspicion drug testing. These drug tests focus on a primary chemical in marijuana—tetrahydrocannabinol (THC). These tests (urine tests, for example) detect the presence of inactive marijuana metabolites, and the THC compounds can be detectable for several days and weeks (for chronic users) following the last consumption of cannabis. However, the law requires that if an employee is subjected to a drug test within the first 30 days of employment, the employee has the right to submit to an additional drug test, at his or her own expense, to rebut the results of the employer’s initial test. The law states that employers “shall accept and give appropriate consideration to the results of such a screening test.” Id. at § 2(3).

Given the change of public perception and the shift in legal application of drug tests for marijuana users, there remains a risk for Nevada employers that continue to test employees unless one of the exemptions to the law clearly applies. For example, the law also does not apply to prospective employees seeking certain safety-sensitive positions, such as those seeking employment as firefighters or emergency medical technicians, those who operate a motor vehicle, or those who, in the determination of the employer, could adversely affect others’ safety. Thus, these safety personnel with a job that “could adversely affect the safety of others” may still be subject to pre-employment drug screening for THC. Id. at § 2(2)(d). Importantly, if the federal law dictates a test for a certain position (like truck drivers) or if the position is funded by a federal grant, then that employee is still subject to pre-employment drug testing for the presence of THC. Also, union employees will still be subjected to drug screening as dictated in their employment contracts or collective bargaining agreements (CBA). Therefore, the vast amount of union employees—depending on the CBA language—are still subject to drug screening, including a test for THC.

Here are some takeaways to assist Nevada employers in avoiding this marijuana legal landmine:

• Employers may want to review and revise their pre-employment drug testing policies prior to January 1, 2020.
• In addition to removing marijuana from the testing panel, employers may want to review their job descriptions to determine which positions may be exempt from the law because they “could adversely affect the safety of others.” Id.
• Employers may want to remove marijuana from their testing panels. However, if the drug screening test is required by federal law or because of a CBA, then the employer can likely continue to test for THC.
• Remember, the Nevada laws (including the new AB 132) do not allow or excuse workers for their own misconduct. Employees cannot be impaired on the job. Also, employers are not required to allow workers to use cannabis at the work site or on the job, so employers may want to thoroughly document any reasonable suspicion of on-the-job use or impairment as a result of marijuana use by any worker. An employer may also want to implement reasonable suspicion testing, including testing for THC, to further document the reasonable suspicion of improper marijuana use. Note, however, that reasonable suspicion testing should be used in conjunction with documentation of the reasonable suspicion, such as witness statements, etc. Because THC can remain in the system for weeks after the last use, drug screening is not by itself enough to establish on-the-job impairment. Accordingly, additional documentation, including collecting witness statements, is wise.