Nevada Prohibits Adverse Action Based on Marijuana Consumption

Starting in January 2020, most employers in Nevada will no longer be able to choose not to hire someone because they test positive for marijuana. Nevada’s governor signed this law in June. Earlier that spring, New York City banned pre-employment drug screening for marijuana and THC all together. As the wave of marijuana legislation crosses the country, it’s likely that more strict laws like this will appear in other states and cities. Here’s what HR needs to know about the legislation.

The Nevada law and its exceptions

Employers in industries like transportation or medicine might feel panicked at the idea of having to hire people who use marijuana, but this law is reasonable, with exceptions for these industries and more. According to the National Law Review, employees whose work involves firefighting, emergency medicine, or driving a vehicle is exempted. There are also exceptions for roles funded by federal grants. 

There are two interestingly ambiguous exceptions: employers can still take adverse action if they feel that an employee could “adversely affect the safety of others.” There’s a lot of room for interpretation here, and the law doesn’t clarify much at all. But it should give employers peace of mind; if you’re worried that hiring people who have consumed marijuana will cause some sort of danger or harm, chances are you’ll still be able to take adverse action based on this exception.

In addition, the law does not apply if the restrictions are “inconsistent or otherwise in conflict with the provisions of an employment contract or collective bargaining agreement.” The law simply states this without explanation, but if employers and employees agree to allow adverse action based on marijuana, then the law would be moot. 

Current employees

Although the Nevada law mostly applies to potential employees, it has an interesting section dedicated to current employees. If an employer hires an employee, and then requires them to take a drug screening test within the first 30 days of employment, they must allow the employee to take another drug screening test to potentially refute the first. The employee has to pay for this second test. There’s no clarification on the timing of this second test, but an employee could potentially take a second test a few weeks later, when they’ve had the chance to get clean. 

This Nevada law could potentially make surprise tests obsolete. 

What To Do

The law will go in place in January 2020, so Nevada employers still have plenty of time to prepare, and employers outside of Nevada should also prepare in case a law similar to Nevada’s passes in their state.

Here are our recommendations for HR:

Review drug policies

We’re in a changing world, and the more states legalize marijuana, the less marijuana consumption says about a potential employee. If you’re in the transportation, medical or emergency industries, marijuana consumption is an obvious inhibitor; if an employee can’t think as quickly because there’s marijuana in their system, they put themselves and others at risk. But for other industries, you should have a serious conversation with your business executives. Is marijuana consumption, outside of work, a dealbreaker? If it is, be sure to have clear reasoning for both your employees and for your states, in case a law like Nevada’s applies. 

Communicate with current employees

With this law’s vague exceptions, if your company is in Nevada, it’s important to communicate to your current employees what it means, and if/how your company policies will change based on the law. If you’re outside of Nevada, your employees are still likely to be curious about your policies. Make your drug and screening policies clear in your employee handbook, and communicate these policies to potential employees.

Review your background screening policy

It’s important to have a comprehensive background screening policy that fits your employees. Lots of employers simply run a drug screen, even if that doesn’t get to the heart of determining a good fit. Use this law to think critically about what you really want to find out about your employee. Once you’ve figured out what screens you want to run, find a qualified background screening provider to take care of the rest.