Up in Smoke: New York City Bans Pre-Employment Drug Testing for Marijuana

2 minute read | June.04.2019

Effective May 10, 2020, New York City employers may no longer test prospective employees for marijuana and tetrahydrocannabinols (THC), the active ingredient in marijuana. This bill- which is the first of its kind in the country- makes such testing an unlawful discriminatory practice under the New York City Human Rights Law.

The New York City Council passed the new bill on April 9, 2019 with a 41-4 vote. Councilman and Public Advocate, Jumanne Williams, sponsored the bill and testified in support of its passage that it would not “giv[e] permission for anyone to come to work high,” but rather is intended to remove a barrier to employment for New Yorkers, particularly those from communities of color. Williams stated that failed drug tests historically lead to a “depletion in the labor pool and the inability of many to advance their careers,” which is “harmful to employers and employees alike.”

While the bill, No. 1445-A, prohibits most New York City employers from requiring a prospective employee to submit to pre-employment testing for THC or marijuana, it contains several exceptions for certain types of jobs. For example, it permits testing for safety and security sensitive jobs such as police officers or peace officers, jobs requiring a commercial driver’s license, and positions requiring the supervision of care of children, medical patients, and other vulnerable persons. The bill also excepts jobs that require drug testing as a condition of receiving a federal contract or grant and notably does not interfere with required federal drug testing mandated by the federal Department of Transportation. The bill provides that the New York City Commission on Human Rights promulgate rules regarding its implementation in the year to come.

Importantly, the bill does not restrict employers from screening job applicants for unlawful drugs other than marijuana or THC. It also does not limit testing current employees for marijuana or other drug use, such as through random or post-accident drug testing.

Employers have one year to prepare to comply with this new law. Employers may wish to review and revise relevant drug testing or substance abuse policies and procedures and update job advertisements and employment applications to comport with the law. Additionally, employers working with Medical Review Officers should ensure that, unless one of the exceptions apply, applicants are no longer tested for marijuana or that marijuana does not appear in any test results presented to the employer. Due to the recent trend in employee-friendly cases (Chance v. Kraft Heinz Foods Co. (Del. Super. Ct. 2018) and Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a/ Bride Brook Nursing Rehab Ctr. (D. Conn. 2018)) dealing with medical marijuana in employment, employers may also wish to revisit their procedures for pre-employment drug testing more generally; while New York City is the first municipality in the country to ban pre-employment marijuana testing, other jurisdictions may follow its lead.