Lawmakers in the state of Nevada this week became the first in the US to pass a bill preventing employers from refusing to employ a candidate who tests positive for marijuana use.

It has long been common practice in the US to subject current and potential employees to drugs tests which allow companies to refuse to hire people who fail the tests.

Cannabis has remained in the group of qualified substances on the target list – even in states where full legalisation of recreational marijuana exists.

Nevada legalised cannabis on January 1 2017, but business owners have still been able to dismiss workers or refuse to employ candidates whose weed use shows up on tests.

There will, however, be several exceptions to the bill – AB 132 – which comes into force on January 1 2020. Emergency workers will still be subject to restrictions over the use of marijuana and cannabis-derived products. Workers covered by federal law will also continue to be tested.

‘Common sense’

The bill was sanctioned by Nevada Governor Steve Sisolak who described its passing as ‘common sense’.

“As our legal cannabis industry continues to flourish, it’s important to ensure that the door of economic opportunity remains open for all Nevadans,” he said.

“That’s why I was proud to sign AB 132 into law, which contains common-sense exceptions for public safety and transportation professionals.”

Lawyers, though, fear the bill may have created some grey areas and the potential for a legal minefield.

Although welcoming AB 132, Henderson legal advisor Susan Myatt says she believes the bill requires some refinement before implementation to prevent a slew of historical legal cases from surfacing.

“Although by the letter of the law this bill will not be effective until January, you have to recognise there could now be grounds for anyone wrongly prevented from employment or indeed dismissed from a position purely because they had smoked a small amount of weed on a day off a week before being tested,” she said.

“The state will no doubt attempt to make these issues black and white, but there will be grey areas – especially during this period before implementation.

“Don’t forget, we are seeing several authorities where cannabis has been legalised now overturning previous cannabis-related convictions from before legislation was in place.”

Screening test

The wording of the bill states clearly it will be illegal to “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”.

The bill can be read in full below…

Assembly Bill No. 132

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Assemblymen Neal, McCurdy and Flores

CHAPTER……….

AN ACT relating to employment; prohibiting the denial of employment because of the presence of marijuana in a screening test taken by a prospective employee with certain exceptions; authorizing an employee to rebut the results of a screening test under certain circumstances; and providing other matters properly relating thereto.

Legislative Counsel’s Digest:

Existing law establishes various unlawful employment practices. (Chapter 613 of NRS) Section 2 of this bill prohibits, with certain exceptions, an employer from denying employment to a prospective employee because the prospective employee has submitted to a drug screening test and the test indicates the presence of marijuana.

Section 2 further provides that if an employer requires an employee to submit to a screening test within his or her first 30 days of employment, the employer is required to accept and give appropriate consideration to the results of an additional screening test to which the employee submitted at his or her own expense.

EXPLANATION

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THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1.

(Deleted by amendment.)

Sec. 2. Chapter 613 of NRS is hereby amended by adding thereto a new section to read as follows:

Except as otherwise specifically provided by law:

It 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. The provisions of subsection 1 do not apply if the prospective employee is applying for a position:

As a firefighter, as defined in NRS 450B.071;

As an emergency medical technician, as defined in NRS 450B.065;

That requires an employee to operate a motor vehicle and for which federal or state law requires the employee to submit to screening tests; or

That, in the determination of the employer, could adversely affect the safety of others.

3. If an employer requires an employee to submit to a screening test within the first 30 days of employment, the employee shall have the right to submit to an additional screening test, at his or her own expense, to rebut the results of the initial screening test.

The employer shall accept and give appropriate consideration to the results of such a screening test

4. The provisions of this section do not apply:

(a) To the extent that the are inconsistent or otherwise in conflict with the provisions of an employment contract or collective bargaining agreement.

(b) To the extent that they are inconsistent or otherwise in conflict with the provisions of federal law.

(c) To a position of employment funded by a federal grant.

As used in this section, “screening test” means a test of a person’s blood, urine, hair or saliva to detect the general presence of a controlled substance or any other drug.

Secs. 3 and 3.5. (Deleted by amendment.)

Sec. 4. This act becomes effective on January 1,2020.