High Times Ahead: New Laws Restrict Marijuana Drug Testing In Recruiting + Hiring – Lexology

Beginning in 2020, Nevada and New York City will restrict an employer’s ability to screen job applicants for marijuana use. As marijuana legalization spreads across the country, other jurisdictions will likely follow suit. Employers, especially those that recruit in Nevada and NYC, should review their drug testing and hiring practices now to stay compliant.

What it means for you

Marijuana use by employees is for the first time protected in some jurisdictions, increasing the risk of discrimination claims by applicants and employees. Employers that hire in Nevada and NYC should consider whether their current recruitment and hiring practices may unlawfully discriminate by screening out applicants who have used marijuana. Here is an overview of the new laws:

Nevada

Starting on January 1, 2020, employers in Nevada are prohibited from failing or refusing to hire a prospective employee because a drug screen reveals the presence of marijuana. The new law, AB 132, exempts certain positions from its mandate, and employers may still reject prospective employees who test positive for marijuana when applying for positions as firefighters, emergency medical technicians, motor vehicle operators required to be drug tested under federal or state law, or other positions that, “in the determination of the employer, could adversely affect the safety of others” or are funded by a federal grant.

The statute also limits its application to the extent it is inconsistent or otherwise in conflict with the provisions of an employment contract, a collective bargaining agreement, or the provisions of federal law. There is no guidance yet on the meaning of these exclusions, including whether employers can “contract around” the ban on marijuana screening through an employment agreement. Because marijuana is still illegal under federal law, AB 132’s express deference to federal law renders the statute at best ambiguous. Last, AB 132 also allows

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