New York City Enacts Law Prohibiting Pre-Employment Testing for Marijuana Use

New York City is not shy about enacting laws governing the workplace. One of NYC’s newest employment related laws will prohibit employers from requiring job applicants, as a condition of employment, to submit to a test for the presence of tetrahydrocannabinols (THC) or marijuana. The law (Intro 1445-A) becomes effective May 10, 2020.

The law carves out exceptions including, but not limited to, applicants for work:

  1. As a police officer, peace officer, position in law enforcement or an investigative function
  2. In positions requiring individuals who must have OSHA 10 training to work on construction sites
  3. As commercial drivers
  4. In positions requiring the supervision or care of children, medical patients, or vulnerable persons as defined under social services law
  5. In positions covered under federal department of transportation regulations
  6. In positions covered by federal grants or financial assistance programs with employers which require drug testing as a condition to the grant
  7. In positions covered by any other law that requires drug testing for the purpose of safety and security
  8. In positions covered by a valid collective bargaining agreement which already addresses pre-employment drug testing.

While these carve outs are somewhat straightforward, other exceptions, including individuals applying to “any position with the potential to significantly impact the health or safety of employees or members of the public” are less clear.

The NYC Commission on Human Rights is expected to promulgate rules for implementation of the new law, which will hopefully shed light on the ambiguities in the law.

The law also appears to be narrow. Specifically, the law only covers “pre-employment” drug tests. It does not appear to cover other types of drug tests for current employees, including post-incident tests, random tests, or reasonable suspicion tests.

Employers with employees that work in NYC should stay tuned for the release of regulations from the NYC Commission on Human Rights and work with legal counsel to modify existing applicant processes and employer drug policies.

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