Last year, Nevada became the first state to ban employers from refusing to hire job applicants that fail a marijuana drug screening test. Recreational marijuana use has been legal in the state since 2016 for adults 21 and over.

“It is unlawful for any employer in this State to fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana,” states the law AB 132 signed on Jun 4, 2019.

This is a big first for employers in Nevada and could lead to changes in other states and localities. Marijuana is still illegal at the federal level, but 11 states and the District of Columbia legalized marijuana for recreational purposes, including:

  • Alaska
  • Michigan
  • California
  • Nevada
  • Colorado
  • Oregon
  • Illinois
  • Vermont
  • Massachusetts
  • Washington
  • Maine

More states are expected to vote on legalizing marijuana in 2020 and beyond. There are also 14 states where medical marijuana use is legal. Laws in those states prohibit employers from discriminating against medical marijuana users.

Why have a workplace drug policy?

This doesn’t mean there shouldn’t be any policies surrounding drug use at work. Employers can still have drug policies that prohibit employees working under the influence. Whether drug policies should continue to be “zero tolerance” is part of the argument.

Obviously safety is an issue. The Nevada law issued some exceptions to complying with the law, including firefighters, EMTs, employees who operate a motor vehicle, or those who, in the determination of the employer, could adversely affect others’ safety. Any “safety-sensitive” industries and jobs should have a strict drug and drug testing policy. What is considered “safety-sensitive” or is covered by law may vary by state and locality. Generally, employers should always consider the safety, productivity and performance of their employees, clients and patrons when creating a drug workplace policy.

drug policies at work

Include your drug policy in your employee handbook

Making sure your employees know and fully understand drug policies is essential. To ensure employees are aware of the rules, include them throughout the hiring and onboarding processes. Train your supervisors and managers to talk about how to appropriately and fairly evaluate and implement policies. If you are going to drug test your employees, determine when you will do that – as a pre-screening procedure, after an accident, at random, or under reasonable suspicion.

As always, all drug policies should be outlined in employee handbooks. Your drug policy sets the expectation for how violations will be handled and sets the standard to guarantee all employees are treated the same. Use your employee handbook or onboarding process to communicate the value of a workplace drug policy, benefits to the company and employees by following it, and any legal compliance stipulations you must follow. Drug policy and workplace procedures should be reviewed by a lawyer to ensure the comply with state laws.

This is new and unknown territory for employers and HR professionals, so you should expect barriers along the way as everyone determines how these new laws will impact the future of workplaces.

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