On June 5, 2019, Governor Steve Sisolak of Nevada became the first state governor to sign into law a bill prohibiting employers from taking action based on a positive pre-employment test for marijuana. First proposed in February 2019, Assembly Bill 132 (AB 132) progressed quickly with only few committee amendments. AB 132 goes into effect on January 1, 2020.
AB 132 amends NRS 613 by adding in a new section pertaining to pre-employment drug testing. As passed, AB 132 prohibits employers from failing or refusing to hire prospective employees because of a drug test indicating the presence of marijuana metabolites. AB 132 does not prohibit employers from testing for marijuana for pre-employment purposes, it only prohibits taking action based on a marijuana-positive test under certain circumstances.
AB 132 includes limited protections for employers in safety-sensitive industries. Namely, AB 132 does not apply to applicants for the following positions/industries:
AB 132 includes some wiggle room for employees, allowing them to continue taking action on pre-employment marijuana positives if the position in question would impact the safety of individuals other than the applicant. It is likely that this provision in the law permits employers to continue taking action on pre-employment marijuana-positives for all traditional safety-sensitive positions.
Additionally, AB 132 adds requirements onto the testing process for employers that choose to test within the first 30 days of an employee’s employment. If an employee is tested within the first 30 days of employment, the employee has the right, at his or her own expense, to take a second screening test, the results of which could be used to potentially rebut the results of the initial, employer-paid test. If the second screening tests results are in contradiction to the first test, the employer must “accept and give appropriation consideration” to the results of the second test.
AB 132 provides certain circumstances under which the law does not apply. These include if AB 132 is in conflict with a specific employment contract, if AB 132 is in conflict with a collective bargaining agreement, if AB 132 is inconsistent or in conflict with federal law provisions, and if the employment position in question is funded by a federal grant.
AB 132 goes into effect on January 1, 2020. Employers must be compliant by this date, and employers that are not, risk legal action.
Similar Progressing Legislation
Maryland SB 863 – prohibits employers from requiring applicants or employees to disclose their use of marijuana, or otherwise inquire of applicants or employees about their use of marijuana.
Massachusetts HB 3751 – would eliminate workplace drug testing for marijuana as a condition of employment. Certain provisions are included for situations where this law would not apply.
Minnesota HB 420, HB 465, HB 2285, SB 619, SB 2840 – would legalize recreational marijuana, in addition to including employment provisions. Employers would not be permitted to discriminate against or discipline employees or applicants because of the presence of marijuana metabolites in a blood sample.
New Jersey AB 4497, SB 2703 – legalizes recreational marijuana, in addition to including employment provisions. Employers cannot refuse to hire an individual or take action based on an individual’s use of marijuana unless the employer has a “rational basis” for such action to take place.
New York AB 1617, SB 1527 – legalizes recreational marijuana, in addition to including employment provisions. Unless an employer can establish that an employee’s marijuana use has impaired their ability to perform job responsibilities, the employer is not permitted to take action based on legal marijuana use or an employee’s marijuana-positive drug test.
Texas HB 3349 – pertaining to the drug testing of employees and independent contractors of state agencies or political subdivisions. Such employees/contractors may not be drug tested with the intent to screen for the presence of THC or CBD indicating the use of marijuana or low-THC cannabis.
What Can Employers Do?
When designing a drug and alcohol testing program, employers should define safety-sensitive roles with detailed job descriptions, in addition to a prescription drug disclosure policy, or Medical Disclosure Policy. With these two combined, this will help reduce risk in the workplace by requiring employees to notify you before starting any prescriptions that might impair their ability to work safely. In addition, it’s advised that employers also expand your lab panel to include prescription drugs, ensure that your drug tests are read by an MRO, and reiterate your drug testing policies to your employees.
An effective drug testing policy includes a clearly written policy, employee education, supervisor training, an employee assistance program and drug testing that abides by state laws and industry specifics.
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