United States: Nevada Law Prohibiting Denial Of Employment Based On Failed Cannabis Test Leaves Unanswered Questions
21 February 2020
Sheppard Mullin Richter & Hampton
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Effective January 1, 2020, Nevada became the first state to ban employers from refusing to hire job applicants for testing positive for cannabis use. Governor Steve Sisolak signed Assembly Bill No. 132 (AB 132) on June 5, 2019, after state lawmakers approved it. AB 132 has two primary effects. First, it makes it unlawful for Nevada employers to refuse to hire a prospective employee because the individual submitted to a drug screening test and the results of the test indicate the presence of cannabis. Second, if an employer requires employees to submit to a drug screening test in the first 30 days of employment, the law allows employees who test positive for cannabis to rebut the results by submitting an additional screening test, at the employee’s own expense, which the employer must then consider. Despite these rather clear edicts, AB 132 has created some confusion for Nevada employers, given no regulations or additional guidance has yet been issued.
Additionally, the new law does not apply to everyone. The law specifically does not apply not employees applying for a position as a firefighter or emergency medical technician (EMT) or for positions that are safety sensitive or require operation of a motor vehicle. The law does not elaborate as to what factors lead to the determination that a job classification qualifies as a safety risk.
Moreover, the new law provides for certain exceptions for contract-based employees. Specifically, AB 132 does not apply if it conflicts with the provisions