Excerpted from Inc. By Suzanne Lucas
Nevada wasn’t the first state to approve recreational marijuana usage, but it is the first to make it illegal to discriminate against users.
That’s not the language used in the bill, but that’s what the law does. Instead of leaving it up to an employer to determine if they want a drug-free workplace, you must treat marijuana users as equals to non-users.
New York City has similar legislation that will go into effect shortly after Nevada’s, even though New York doesn’t have legalized recreational marijuana.
There is logic to this change, because unlike alcohol, which clears out of your system relatively rapidly, you can test positive for marijuana when you aren’t remotely high. Blood and saliva tests can show if you are under the influence, but not the degree, as you can determine with alcohol. Urine tests will only show that there has been usage. The idea is, why worry about what someone did Saturday night when they won’t be to work until Monday?
The new law (which goes into effect on January 1, 2020) has exceptions for the following positions:
• Emergency medical technicians
• Employees who operate motor vehicles and who are subject to other state or federal laws
• People who “in the determination of the employer could adversely affect the safety of others”
While I don’t believe drug testing is necessary for every position, I do think this law goes too far to the other extreme. Employers should be allowed to choose to be a drug-free workplace, and because testing is imperfect–you can’t necessarily tell the difference between under the influence now and was under the influence while off duty–you will run into complications with people claiming protection when they were impaired.
I also don’t like making marijuana protected like race or pregnancy status.
But it’s likely that Nevada won’t be the last state to pass legislation like this. Some states already have these protections in place for medical marijuana users. So, if you’re in a state with legalized weed, consider the following policy changes:
• Determine which jobs “could adversely affect the safety of others.” It’s not very well defined, so is this a bartender who needs to know when to cut someone off, or a dental hygienist? What about a construction worker? If you want to test at all, figure out which of your jobs fit in this category.
• Update all your job descriptions.
• If you are going to test for other drugs, make sure you tell the testing center not to flag marijuana users. You don’t want to know, even if it won’t change your decision.
• Remind employees that being high while on the job is still a violation that can result in termination.
• Switch to saliva or blood tests when you suspect impairment on the job.
I suspect there won’t be a lot of practical changes in the day-to-day operations of Nevada companies due to this law, but it will make marijuana users a lot more relaxed before that next job interview.