As more states move to legalize marijuana, both recreational and medical, one state and one major city are taking legalization to the next level: by banning preemployment drug testing for tetrahydrocannabinol (THC), the active ingredient in marijuana.
Nevada Passes Groundbreaking New Law
Nevada became the first state to ban THC preemployment drug screening. Governor Steve Sisolak signed AB 132 into law on June 12, 2019, prohibiting the denial of employment because of the presence of marijuana in a screening test taken by a prospective employee.
The law goes into effect on January 1, 2020, but some professions are exempt under the new law. These positions include firefighters, emergency medical technicians (EMTs), any employee who drives a motor vehicle—for which federal or state law requires the employee to submit to a screening test—or any safety-sensitive position that could adversely affect the safety of others.
The law also states that if an employer requires an employee to submit to a screening test within the first 30 days of employment, the employee may submit to an additional screening test, at his or her own expense, to rebut the results of the initial screening test.
“Employers who drug test new hires should remove marijuana from the testing panel and review job descriptions to determine which positions may be exempt from the ban if employees in those positions ‘could adversely affect the safety of others,’” says the Society for Human Resource Management.
New York City Started It
The new stance on drug screening comes on the heels of New York City (NYC), which also banned THC screening earlier this spring. Effective May 10, 2020, city employers are prohibited from making any negative hiring decisions based on a preemployment drug screening that shows the jobseeker has THC in his or her system.
However, just like the Nevada law, there are certain positions that are exempt from the new law, these include:
- Police officers or peace officers,
- Emergency responders,
- Safety-related positions,
- Jobs requiring a security clearance,
- People who supervise or care for children, medical patients, or vulnerable persons,
- Workers who operate vehicles requiring a commercial driver’s license, and/or
- Jobs tied to a federal or state contract/grant.
“Many employers have already voluntarily stopped testing for marijuana given the prevalence of its use among younger workers,” says Devin Dilts, an associate at Coughlin & Gerhart, LLP—in the May issue of New York Employment Law Letter.
“In light of all that, New York employers will need to reexamine their policies and procedures on drug testing for marijuana and THC,” Dilts adds. “When drafting your policies and procedures, you should be familiar with and understand the several exceptions in the NYC law.
It remains to be seen whether or not more states and major cities will follow suit, but if so, it’s best to be prepared. Be sure to review all policies and procedures around drug testing new hires, and in addition, make sure your job descriptions are also up to snuff.