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 of an employment contract or a collective bargaining agreement, or if it is inconsistent with provisions of federal law. It remains unclear whether an employer may affirmatively bargain around the law, or if the exception applies exclusively to pre-existing contracts. Further, AB 132 does not apply to employees applying for positions funded by federal grant dollars, and many federal contractors and grantees are still required to comply with federal laws, including the Drug Free Workplace Act.

Other jurisdictions have passed similar measures. For example, the New York City Council passed a similar ordinance prohibiting employers from testing applicants for cannabis usage altogether. In addition, a recent Maine law prohibits employers, schools and landlords from discriminating against people for cannabis consumption, but the law does not specifically address drug testing.

Given the open questions, Nevada employers should ensure their personnel policies and hiring procedures are updated and compliant with the new law. Employers should also have a specific procedure in place in the event an applicant’s pre-employment drug screening test comes back positive for cannabis. Finally, employers should review job descriptions to determine which positions, if any, qualify for the law’s exceptions.