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New Marijuana Legislation Impacts Employer’s Rights

Starting January 1, 2020, employers in Nevada may not reject a job applicant who tests positive for cannabis on a pre-employment drug screening.FN1 Under the recently passed Nevada law, if an employer requires an employee to submit to a drug screening within the first thirty (30) days of employment, the employee has the right to take a second test, at his or her own expense, to contest the results of the initial screening. The employer is required to accept and consider the results of the employee’s second screening.

Nevada’s prohibition on pre-employment screenings for marijuana use does not apply to applicants for positions as a firefighter; emergency medical technician; certain motor vehicle operators; or positions that “in the determination of the employer, could adversely affect the safety of others.” The law also does not apply to the extent it is inconsistent or conflicts with an existing employment contract, collective bargaining agreement, federal law, or to positions funded by a federal grant.

            Unlike the Nevada law, the recently passed Illinois Cannabis Regulation and Tax Act (the “Illinois Cannabis Act”), provides extensive protections for employers.FN2 Under the Illinois Cannabis Act, also effective January 1, 2020, employers in Illinois are permitted to: discipline an employee for violating an employer’s employment policies or workplace drug policy; maintain reasonable zero tolerance or drug free workplace policies; terminate an employee for testing positive for marijuana from a random drug test, even if that employee is not impaired at work; and discipline an employee based on a “good faith belief” that an employee is under the influence or impaired. The employer must afford the employee a reasonable opportunity to contest the basis of the determination.

Practical Takeaway

Employers operating in Nevada should review existing drug testing and substance abuse policies to determine whether changes are needed to comply with the new law. Employers with drug testing policies triggered by a “good faith belief” or “reasonable suspicion” should consider training management on how to identify signs of drug impairment, and what procedures to follow under the policy.

Footnotes:

FN1:   Nevada, Assembly Bill No. 132 (signed June 5, 2019), http://src.bna.com/IBB; see also Eric Levenson and Chris Boyette, Nevada bans employers from refusing to hire those who fail marijuana tests, CNN (June 12, 2019), https://www.cnn.com/2019/06/12/us/nevada-marijuana-job-screening-trnd/index.html

FN2:   Illinois, Cannabis Regulation and Tax Act, HB 1438 (passed June 4, 2019), http://ilga.gov/legislation/101/HB/10100HB1438sam002.htm. The Illinois Cannabis Regulation and Tax Act decriminalizes marijuana use for adults age 21 and older. See James J. Oh and Kathleen A. Barrett, Employer Insights: Recreational Marijuana in Illinois, The National Law Review (June 18, 2019), https://www.natlawreview.com/article/employer-insights-recreational-marijuana-illinois