New York City Poised to Bar Pre-employment Marijuana Testing

On April 9, 2019, the New York City Council overwhelmingly passed a bill that would prohibit most pre-employment screening for marijuana by public and private employers. The bill is supported by Mayor Bill de Blasio and would take effect one year after the mayor signs it into law.

Unlawful Conduct

The bill would amend the New York City Human Rights Law to make it “an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols” [THC] or marijuana in his or her system “as a condition of employment.”

The bill would not restrict employers from screening job applicants for unlawful drugs other than marijuana. The bill also would not limit testing of employees in the workplace for marijuana or other drug use, including random, reasonable suspicion, or post-accident drug testing.

The bill also contains a long list of exceptions, particularly for jobs involving safety and security. It would still be lawful under the bill to require marijuana testing of applicants for:

• Most positions involving construction or demolition work;
• Any position requiring a commercial driver’s license;
• Most positions requiring the supervision or care of children, medical patients, or persons with developmental disabilities or in adult care facilities; and
• Police officers, peace officers, or any position with the potential to significantly impact the health or safety of employees or members of the public, as determined by the Commissioner of the New York City Commission on Human Rights (NYCCHR) or the Department of Citywide Administrative Services.

The prohibition on pre-employment marijuana testing also would not apply to any drug testing required pursuant to:

• U.S. Department of Transportation regulations (49 C.F.R. Part 40);
• Any federal contract or grant; or
• Any federal or state law “that requires drug testing of prospective employees for purposes of safety or security.”

The City Council rejected an earlier version of the bill that contained much broader exemptions, including for any positions in which an employee would be required to possess a security clearance under federal or state law, any positions requiring the operation of heavy machinery or a motorized vehicle, or any emergency response positions. Therefore, the exceptions in the final version of the bill are likely to be narrowly construed by the NYCCHR.

The bill also would exclude testing required under a valid collective bargaining agreement (CBA) if the agreement specifically addresses pre-employment drug testing of applicants. It is rare in practice, however, for a private-sector CBA to address drug testing of applicants, as applicants are not yet members of a bargaining unit and matters concerning applicants are, therefore, permissive subjects of bargaining under the National Labor Relations Act.

Key Takeaways

If enacted, this bill would be the first law of its kind in the country. Employers may want to review their pre-employment drug testing policies, consider positions that may be exempt from the bill, and prepare to modify procedures to ensure compliance with this bill once enacted. Employers that are parties to CBAs may want to review CBAs and consider whether to seek to negotiate specific provisions addressing pre-employment drug testing of job applicants.

Ogletree Deakins will continue to monitor developments on these state and local legislations and will post updates on the firm’s blog as additional guidance becomes available.