July 6, 2019

New York City and Nevada Prohibit Hiring Discrimination for Positive Marijuana Tests

Marijuana continues to gain public acceptance, as evidenced by the growing legalization movement across the country. Illinois recently became the 11th state to legalize recreational marijuana, and the first to do so legislatively as opposed to via referendum.

But perhaps an even greater sign of the public’s growing acceptance of marijuana is the arrival of new laws to protect prospective employee’s right to use marijuana.

Nevada Assembly Bill No. 132 was signed into law earlier this June, prohibiting the denial of employment over the presence of marijuana in a drug screening test taken by a prospective employee. While a large majority of prospective employees can effectively test positive for marijuana under this new law and not be denied employment, certain exceptions are noted in the bill, including:

  • Firefighters and EMTs
  • An employee required to operate a motor vehicle for which federal or state law requires the employee to submit to drug tests
  • Jobs that, in the determination of the employer, could adversely affect the safety of others
  • Positions funded by federal grants, or with federally mandated requirements surrounding abstinence from drug use

Also in June, the New York City Council prohibited employers from requiring a prospective employee to submit to testing for the presence of any tetrahydrocannabinols (THC), the active ingredient in marijuana, in such prospective employee’s system as a condition of employment.

This rule will go into effect May 10, 2020, but exceptions are provided for safety and security sensitive jobs, and those tied to a federal or state contract or grant. This includes:

  • Police officers or peace officers
  • Any position requiring a commercial driver’s license or the supervision of care of children, medical patients, or vulnerable persons
  • Any position with the potential to significantly impact the health or safety of employees or members of the public, as determined by key city council figures
  • Jobs requiring security clearance
  • Emergency responders

While so far these are the only two examples passed, the fact that they were passed so close to one another could indicate that other localities might have similar plans in motion. Not only does this have the potential to impact workers’ comp from an employee safety position, but if further down the line patients are free to use recreational marijuana, that could impact recovery efforts and drug therapy when a patient is injured on the job.

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