Matt Hesketh

A Nevada law that goes into effect on January 1, 2020, will make it unlawful for Nevada employers “to fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the test indicate the presence of marijuana.”

The law expressly does not apply to applicants for:  (i) a firefighter or EMT position; (ii) a position that requires drug testing to operate a motor vehicle; (iii) a position “that, in the determination of the employer, could adversely affect the safety of others”; and (iv) a position funded by a federal grant.  The law also does not apply to the extent it conflicts with an employment contract or collective bargaining agreement and to the extent it is “inconsistent or otherwise in conflict with” federal law.

The law leaves several issues unresolved.  For example, what type of risk will justify the exception based on the safety of others?  How can employers contract around the law?  How does the federal Controlled Substances Act, which classifies marijuana as a Schedule I substance, affect this law?

As with many issues in this context, Nevada employers should review drug testing policies and will need to be cautious as these and other questions play out in the courts or legislature.