Nevada Bans Pre-Employment Marijuana Testing, Becomes First In The Country To Do So

The law makes exceptions for EMTs, firefighters, and operators of heavy machinery, among others.

A drug-testing sample kit.
ProjectManhattan / Wikimedia Commons (CC BY-SA 4.0 Cropped, resized.)

The law makes exceptions for EMTs, firefighters, and operators of heavy machinery, among others.

Nevada has become the first state to ban pre-employment marijuana testing, CNN reports. The law expressly forbids employers from refusing to hire applicants based on their testing positive for pot, with a few exceptions for certain safety-forward jobs, such as Emergency Medical Technicians (EMTs) or firefighters.

On Tuesday, Governor Steve Sisolak signed AB 132, which you can read in its entirety here. “It is unlawful for any employer in this State to fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana,” the bill states.

Further, the bill prohibits employers from invoking a workaround wherein they can hire an employee, drug test them the next day, and then fire them if they fail. The law says that any employee required to take a post-hire drug test can request a new test 30 days later if they fail the first one, and the employer must accept the results of the second test.

The law does provide some exceptions, however. Persons applying to be EMTs or firefighters, for example, can still be subjected to pre-employment pot testing. Other exceptions exist for jobs that require the employee to drive a vehicle, operate heavy machinery, or otherwise work in some sort of safety-forward capacity.

Employees who work at jobs that require random, post-accident, routine, or other forms of drug testing are not covered by the new law.

Nevada, which is one of 11 states to have legal recreational marijuana, is the first state to pass such a law. New York City passed a similar law that forbids employers from making applicants pass a pot test as a condition of employment. Similarly, Maine (where recreational marijuana is also legal) also forbids employers from “discriminating” against applicants based on marijuana use, but the law’s language doesn’t mention drug testing.

The past several years have seen multiple states legalizing recreational marijuana, with Colorado being the first. Multiple other states allow for medical marijuana. Cannabis remains illegal at the federal level, although the feds have generally taken a “hands-off” approach to state marijuana laws.

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This has led to legal headaches for users, employers, and legislatures in those states that allow legal pot use in some form or another, when it comes to drug testing.

By and large, says attorney Sachi Barreiro, writing in Nolo, in all 50 states employers are free to test users for cannabis and to make employment decisions based on those tests. Among the states that have legalized medical-only cannabis use, only a handful — including Illinois, Arizona, Massachusetts, and Delaware — have written laws that protect medical users from being fired (or denied a job) for cannabis use. Other states where medical marijuana is legal offer no such protections, and if you fail a drug test, even if you have a “card,” you’re out of luck.

In states where recreational cannabis is legal, however, all bets are off. Other than Nevada, no state that allows recreational pot use protects non-medical users from discipline at their jobs for failing a drug test.

Nevada’s new law goes into effect in 2020.