Beginning January 1, 2020, new legislation in Nevada will require employers to think carefully about whether and which applicants should be tested for marijuana. Under A.B. 132, employers are generally prohibited from withholding a job offer because a candidate tests positive for marijuana use. Marijuana testing limitations will also apply to testing of employees within their first 30 days of employment. As detailed below, the law does not apply to certain types of positions. Nevada employers with current marijuana testing programs, and those considering implementation of marijuana testing, will be faced with a number of strategy and policy decisions as they prepare to comply with the new law.¹

Prohibited Marijuana Testing Practices for Applicants and New Employees

The new law, which contains no express private right of action, generally prohibits Nevada employers from failing or refusing to hire an applicant because the applicant "submitted to a screening test and the results of the test indicate the presence of marijuana." A "screening test" is defined as "a test of a person's blood, urine, hair or saliva to detect the general presence of a controlled substance or any other drug."

While nothing in A.B. 132 generally prohibits employers from terminating or otherwise disciplining current employees who test positive for marijuana, some protections will extend to new hires within the first 30 days of their employment. Specifically, if an employee not categorically excluded from the law's protections, as discussed below, is asked to submit to a screening test in that initial 30-day employment window, the employee will 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." If such an employee submits a rebuttal test result, the employer must "accept and give appropriate consideration to the results of such a screening test."

Significantly, aside from the limited right to rebuttal tests for new employees, the only employment actions affected by A.B. 132 are hiring decisions. Notably, the law does not prohibit pre-employment marijuana testing entirely.²

Positions Excluded from These Protections

A.B. 132 contains two types of exclusions from its protections. First, it provides a partial exemption for certain positions from the law's applicant-testing prohibitions, but not from the new hire/employee marijuana testing limitations. Second, it sets forth a categorical and complete exclusion from all protections where those protections conflict with employment contracts, federal law, or federal grant requirements.

1. Positions Exempt from Applicant-Testing Protections, Including Jobs "Determined" By Employers to Be Safety-Sensitive

The new law will permit employers to continue rejecting marijuana users who apply for certain positions, including those determined by employers to be safety-sensitive. In particular, employers may reject applicants who test positive for marijuana if they apply for any of the following types of positions:

• A firefighter or emergency medical technician, as each are defined in Chapter 450B of the Nevada Revised Statutes; or
• A position requiring an employee to operate a motor vehicle, if federal or state law would require the employee to submit to screening tests for that position; or
• A position that, "in the determination of the employer, could adversely affect the safety of others."

The legislative history suggests that the last of these categories is intended to serve as a "catchall piece" including "all the other types of job classifications where the employer feels marijuana [use] could be a safety risk." Nevertheless, employers should proceed cautiously and consider seeking legal counsel before invoking the "catchall" exemption. Despite the favorable express language tying the exemption to an employer's "determination," the scope of the exemption is, as of yet, untested and unclear.

2. Categorical/Full Exclusions from Protection

a. Contract-Based Exclusions

A.B. 132 explicitly states that its protections do not apply "[t]o the extent they are inconsistent or otherwise in conflict with the provisions of an employment contract or collective bargaining agreement" (CBA). Accordingly, employers with existing or to-be-negotiated employment contracts or CBAs, that are evaluating marijuana testing programs, should look for favorable language and/or develop negotiation strategies providing contractual flexibility regarding adverse action and marijuana test results. If a contract or CBA conflicts or is inconsistent with the new Nevada law, those documents will control, and neither the applicant nor new employee marijuana testing restrictions will apply.

b. Federal Funding Via Grants and Federal Law Exclusions

Employment positions funded by a federal grant are excluded from the protections of A.B. 132. Likewise, neither the prohibitions on adverse action toward applicants based on positive marijuana test results, nor the testing limitations for employees in their first 30 days of work, apply "[t]o the extent that they are inconsistent or otherwise in conflict with the provisions of federal law."

Ongoing Applicability of Nevada's Other Marijuana Laws and Lawful Consumable Products Laws

It bears emphasis that the new testing law does not affect employers' compliance obligations with respect to either Nevada's other marijuana laws or its lawful consumable products statute.

Under Nevada's medical marijuana law, employers are not required to accommodate medical use of marijuana in the workplace or modify the job or working conditions of a medical marijuana user based on the reasonable business purposes of the employer. Employers must attempt to reasonably accommodate medical marijuana users, however, if an employee holds a valid Nevada registry identification card and if accommodation would not pose a threat of harm, impose an undue hardship on an employer, or prohibit an employee from fulfilling his or her job responsibilities.

In addition, employers should bear in mind that they also remain obligated to comply with the antidiscrimination provisions of Nevada Revised Statutes § 613.333. Under that statute, it is an "unlawful employment practice" for an employer to "[f]ail or refuse to hire a prospective employee" or "[d]ischarge or otherwise discriminate against any employee . . . because the employee engages in the lawful use in this state of any product outside the premises of the employer during the employee's nonworking hours, if that use does not adversely affect the employee's ability to perform his or her job or the safety of other employees." An early draft of A.B. 132 purported to clarify that the "consumption of marijuana" in a manner that "complies with the laws of this State" is a "lawful use of a product" for purposes of NRS § 613.333. Yet that language was eliminated from the final bill as enrolled and delivered to Governor Sisolak.

What Should Employers Do before January 1, 2020?

Before the new law is effective, Nevada employers should evaluate their approach to pre-employment marijuana testing, weigh risk tolerance, and assess structural changes to any existing or pending marijuana testing program. Employers face a spectrum of options, depending on their risk tolerance. Potentials options include eliminating pre-employment testing for marijuana altogether, only conducting pre-employment testing of marijuana for positions that fit one of the exclusions, etc.

Employers that conduct pre-employment testing for marijuana should take this opportunity to identify positions covered by the exemptions provided by A.B. 132, including those that could affect the safety of others. Nevada employers may wish to revisit and explore changes to testing protocols—for applicants, new hires within their first 30 days, and longer-term employees. Employers should review employment contracts and CBAs and negotiate such agreements in a manner that best furthers the employer's objectives. Employers with specific questions about A.B. 132, or other pertinent Nevada laws, should consult knowledgeable employment counsel.

¹Of course, marijuana continues to be an illegal drug under federal law.

²As a result, A.B. 132 leaves open the possibility, with some risk, that employers can continue pre-employment testing of applicants for marijuana and onboard those applicants testing positive with imposition of employment conditions. It also continues to allow testing (with potential repercussions) for current employees. Any such testing remains subject to the Nevada medical marijuana and off-duty conduct statutes.