elevateNV
Jan 12 2020 . 4 min read
january-20-inhaleexhale-with-shoshanna-silverberg

January ’20: Inhale/Exhale with Shoshanna Silverberg

January ’20: Inhale/Exhale with Shoshanna Silverberg

New law prohibits employers from hiring prospective employees based on marijuana drug tests

New law prohibits employers from hiring prospective employees based on marijuana drug tests

Dear Shoshanna,

I recently read that on January 1st, Nevada will be the first state in the country to make it unlawful for Nevada employers to refuse to hire someone based on the presence of marijuana in pre-employment drug screenings. I’m the HR manager at a small company and am not sure how to interpret this new law. What are the new rules in Nevada with regard to hiring and drug testing? Once the new law has taken effect, what are we allowed to test for versus not allowed to test for and when? For instance, if we suspect an employee, once already hired, is using marijuana, can we still test them? And if they do test positive for marijuana, is this an offense that can be cause for termination? I am hoping you can clarify this new law for me!

In compliance we trust, Becky in HR

 

Dear Becky,

Thanks for raising this question, which is sure to be top-of-mind for Nevada employers right now. As you mentioned, AB 132, which passed on May 24, 2019 and goes into effect January 1, 2020, makes it illegal for an employer to refuse to hire someone solely based on the presence of marijuana in a drug screening. (Note: this statute only applies to marijuana, and does not apply to the presence of methamphetamines, opioids, or other drugs. And, the change in law does not say the presence of THC in a drug test can’t be a factor in decisions related to hiring or firing, it just can’t be the only one.) So, while you can still test employees for all kinds of substances before and during employment, AB 132 provides that you can’t decide not to hire someone simply because they have THC in their system. There has to be another reason, such as insufficient qualifications, a performance failure of some kind, or, perhaps, the presence of another type of drug.

Straightforward as this may seem, along with AB 132 comes no shortage of exceptions and open questions. What have become known in several other states as “safety-sensitive” positions (i.e. firefighters, emergency medical technicians, and certain motor vehicle operators) are exempt from the law, as is any job that’s funded by the federal government and/or subject to federal contracts or certain collective bargaining agreements. 

While the answers to most of your questions have to do with what kind of organization you’re working at and the type of positions it employs, your questions also get to the heart of what constitutes grounds to refrain from hiring someone, versus firing them once they are already an employee.

For example, are we talking about a small team of emergency medical technicians? If yes, you can decline to hire someone for that job if they fire someone for having marijuana present in their drug screening. Although, per AB 132, employees who fail a test administered within the first 30 days of employment are permitted to take another test, at their own expense, which employers must accept.

If we’re talking about a business like an independent coffee shop, however, you’ll have a hard time making a case that the presence of marijuana in your barista’s bloodstream “could adversely affect the safety of others.” You’d have to have other reasons not to hire this person.

As for your company’s employment policies, the questions you raise apply even more strenuously to the difference between being intoxicated on the job and someone just testing positive for THC in general. Testing positive for THC does not mean that someone is intoxicated at the time they’ve been tested. It simply means they’ve consumed cannabis at some point in the previous weeks. This is addressed by SB 132 on the front end of hiring-related statutes, but is again, not fully addressed when it comes to assessing the rights of employees after they’ve been hired. 

What this means is that in some professions, there may be a stronger argument for instituting what we would call a zero-tolerance policy. Firefighters are a perfect example as are emergency medical professionals. Yet, the gray area here persists. We’ll have to see what kind of fact-dependent cases emerge and see how these are addressed by the courts. However, for now, let it suffice to say that if your company operates in a sector that is not specifically mentioned in Nevada’s legislation, you have to have more than a positive drug test result in order to deny someone employment.

 

Should you have a question or ethical conundrum you have been struggling with, please drop Shoshanna a line at info@elevatenv.com so she can offer her sage and practical counsel.

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