On April 9, 2019, the New York City Council approved a bill which will prohibit employers from testing prospective employees for marijuana in a pre-employment drug test. While there are exceptions in the bill for safety sensitive positions and other specific types of employment, this bill demonstrates a change in pre-employment drug testing in New York City and employers should take note. The bill is expected to be signed into law by Mayor DeBlasio imminently.
The language in the bill specifically prohibits employers, labor organizations, and employment agencies from requiring a “prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.” Similar to other of marijuana-oriented statutes, Int. 1445-A provides a number of exceptions, with the law generally not applying to individuals seeking employment in any of the following jobs:
- Police officers or peace officers;
- Positions requiring compliance with Section 3321 of the NYC Building Code of Section 220-h of the Labor Law (generally, employees in certain types of construction and/or maintenance positions);
- Positions requiring a commercial driver’s license;
- Caregivers for children, medical patients or other “vulnerable persons” (as defined by the social services law);
- Positions with potential to significantly impact health of safety of other employees and/or the public;
- Positions subject to a valid collective bargaining agreement that touches drug-testing policies for applicants; and
- Positions for employers required to drug test pursuant to federal law, or pursuant to a government contract
Once signed by Mayor DeBlasio (or, if Mayor DeBlasio does not sign/veto it, after May 9, 2019) the bill will become an effective law in one year. Therefore New York City employers have time to revise their pre-employment drug testing policies to conform with the law before it goes into effect.
Employers who believe their applicants’ positions will fit within one of the law’s exceptions should tread carefully. As our blog discusses here , at least one federal court has held that the federal Drug Free Workplace Act, which applies to government contractors, does not in and of itself require drug testing. Therefore, government contractors may have an especially hard time reconciling between these (potentially) contrasting obligations.
At a minimum this law is a signal to employers in New York City, and in much of the rest of the country, that in absence of any federal action concerning marijuana, state and local governments appear increasingly willing to establish laws which will accommodate persons who use marijuana, including the growing significant population of medical cannabis users. Should you have any questions or if you would like to discuss how these changes will impact your company, please contact your regular Saul Ewing LLP labor and employment attorney.