Under Assembly Bill 132 (AB132), passed by the Nevada State Legislature and signed by the governor in 2019 and which took effect January 1, 2020, most employers in the state may not refuse to hire prospective employees due to testing positive for marijuana use on a pre-employment drug screening. The law has several exceptions who may be rejected due to a positive drug test. They include firefighters, EMT’s, and those required to drive as part of their job.
AB132 also provides new employees who are required by their employer to submit to a drug screening during the first 30 days on the job, to submit a second test from a testing facility of their choosing and at their own expense, and submit the results to rebut the employer mandated test. Employers are required to accept and give appropriate consideration to employee submitted results.
Federal Law still classifies marijuana as a Class I prohibited substance, and if your prospective employer is the federal government, or a government contractor, or your employment is funded by a federal grant, you may still be rejected as a new employee for marijuana use under Federal guidelines.
Does this really change employment polices?
Other than the above, under existing law, after the first 30 days on the job, employers may continue to require random drug tests and fire employees if they fail for reasons other than marijuana use, if their company policies and procedures provide for such actions. Company policies which address impairment on the job, due to drug and alcohol usage, may continue to be enforced under the new law. In no way does this new law condone coming to work impaired by marijuana any more than existing laws tolerate coming to work impaired due to alcohol.
Employers may also continue pre-employment drug screenings and consider other prohibited substances as justification for not hiring a potential employee. The point of the new law is to prohibit the lawful use of marijuana from being a reason to not hire a potential new employee.
Remedies if an employee is fired or not hired due legal use of marijuana outside the workplace
Nevada law does provide that employees who have been fired, or new employees who were not hired due to legal use of marijuana, may sue civilly for damages against the employer or prospective employer. A civil suit brought against an employer or prospective employer may seek damages for the following:
- Wages and benefits lost as a result of the firing or refusal to hire
- An order of reinstatement without loss of position, seniority or benefits
- An order to employer to hire a prospective employee who was not hired for marijuana use
- Damages equal to the amount of the lost wages and benefits.
In addition, the court will award reasonable costs including court costs and attorney’s fees to the prevailing party in such a lawsuit.
The Richard Harris Law Firm represents victims of unlawful labor practices
It is expected that AB132 and the changes that it brings to the employment landscape will spark litigation to resolve disputes under the provisions of the new law. Employment law is a dynamic and fast changing area of law practice. Its important that the lawyer who represents you for an employment lawsuit knows the statutes that govern in that arena and has the skills to present your case clearly and with strength. If you are the victim of discrimination either in hiring decisions or unlawful terminations, call our office today to discuss your potential case at (702) 444-4444.