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 an employee who fails a drug test within the first 30 days of employment to take a second drug test, at his or her own expense, to rebut the results of the first test.

NYC

NYC has enacted a similar bill, Int. No. 1445-A, which takes effect May 10, 2020. This bill prohibits any employer, labor organization, employment agency, or “agent thereof” from requiring, as a condition of employment, a prospective employee to submit to testing for the presence of tetrahydrocannabinols or marijuana.  

Note that this law prohibits testing applicants for marijuana, while the Nevada law takes the opposite approach by prohibiting employers from rejecting candidates who test positive.

The NYC law does not apply to persons applying to work:

  • As police officers, peace officers, or positions with law enforcement or investigative functions at the department of investigation;
  • As laborers, workers, contractors, mechanics, etc. on a public work site;
  • In any position requiring compliance with Section 3321 of the NYC Building Code or section 220-h of the NYC labor law (certain positions subject to safety measures at construction sites);
  • In a position requiring a commercial driver’s license;
  • In a position requiring the supervision or care of children, medical patients, or vulnerable persons; or
  • In any position with the potential to significantly impact the health or safety of employees or members of the public (as determined by a commissioner or chairperson).

The NYC law does not apply to drug testing required pursuant to a contract between the federal government and an employer (including financial assistance grants); federal or state department of transportation regulations; federal or state laws that require testing for purposes of safety or security; or employers subject to collective bargaining agreements that address drug testing.  However, the bill leaves unanswered the question of whether an employer may prospectively include pre-employment drug testing requirements in a CBA.

Notably, neither the Nevada nor the NYC law addresses the employer’s right to require current employees to submit to drug tests.

Conflicting Authority in Other Jurisdictions

While Nevada and NYC uniquely address pre-employment drug screening, other jurisdictions are grappling with related issues surrounding marijuana use in the workplace.

  • Illinois, for example, recently legalized recreational marijuana use as of January 1, 2020. The Illinois law explicitly reserves an employer’s rights to maintain policies regarding drug testing and a “zero tolerance or drug free workplace,” so long as those policies are applied in a nondiscriminatory fashion.
  • Similarly, in an unpublished decision, the Michigan Court of Appeal held that a Michigan statute did not prohibit a private employer from rescinding an offer to an at-will employee based on a positive tetrahydrocannabinol (THC) test result.
  • On the other hand, the Superior Court of New Jersey Appellate Division held that an employee sufficiently stated a cause of action for disability discrimination after he was fired for his medical marijuana use.
  • California has not yet addressed marijuana testing, and so employers may continue their normal post-offer drug testing procedures for California employees. Employers should, as always, administer drug testing in compliance with applicable privacy and discrimination laws.

As these examples show, the laws vary significantly among states and are evolving, and employers should stay informed of jurisdictional differences surrounding marijuana use in the workplace.

Actions to take

The government agencies responsible for enforcing these new drug testing laws are expected to issue guidance and/or FAQs before the laws take effect. In the meantime, employers who recruit in Nevada and NYC should proactively:

  • Consider whether workplace drug testing is necessary or appropriate for particular job positions—it is one thing to require drug tests for safety-sensitive positions, but it may not make sense to test for marijuana use for positions that do not directly implicate public safety, such as grocery store baggers;
  • Emphasize that, although recreational or medical marijuana use may be legal at the state level, the employer still strictly prohibits employees from working while under the influence, and will discipline employees who violate its policies; and
  • Ensure drug testing—to the extent it is permitted—complies with both the ADA and state discrimination laws that limit medical-related inquiries and restrict the process and timing of drug testing.

Read more

  • New legislation — review the Nevada bill here and review the NYC bill here.
  • For more on medical marijuana & the duty to accommodate, click here.
  • For more on the cannabis legal landscape in Canada, click here.

Contact your Baker McKenzie lawyer to develop your policies and practices in this area.