As of May 10, 2020, New York City Will Prohibit Testing Job Applicants for Marijuana

On April 9, 2019, the New York City Council passed Int. No. 1445-A, which bars employers – with some broad exceptions discussed below – from requiring job applicants to submit to pre-employment drug testing for the active ingredient in marijuana. Although Mayor DeBlasio had been widely expected to quickly sign the bill into law, he did not do so within 30 days. Accordingly, under the City’s legislative rules, the bill became law on May 10, 2019, and will therefore go into effect on May 10, 2020. The New York City Human Rights Commission is now required to promulgate rules for its implementation.

The new law amends Section 8-107 of title 8 of the Administrative Code of the City of New York by adding a new subdivision 31, which states that “[e]xcept as otherwise provided by law,” it shall be an “unlawful discriminatory practice” for any “employer, labor organization, employment agency, or agent thereof” to require a prospective employee to be tested for marijuana or tetrahydrocannabinols (also called THC, the psychoactive ingredient in marijuana) as a condition of employment. However, the law lists multiple categories of exemptions to the testing ban, some of which are quite broad.

First and foremost, the prohibition on testing for marijuana does not cover individuals applying to work in certain safety-related industries, including:

1. As police officers or peace officers;
2. In “any position requiring compliance with section 3321 of the New York city building code or section 220-h of the labor law” (i.e., various construction industry jobs);
3. In “any position requiring a commercial driver’s license”;
4. In any position “requiring the supervision or care of children, medical patients or vulnerable persons” as defined in the social services law; or
5. In 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 citywide administrative services, or the City’s Human Rights Committee chairperson, or as identified in Human Rights Commission regulations.

Additionally, the law states that it does not apply to drug testing required pursuant to the following:

1. U.S. Department of Transportation regulations requiring testing of prospective employees, or any New York State or New York City Department of Transportation rule adopting such regulations;
2. any contract between the federal government and an employer, or grant of financial assistance from the federal government to an employer, requiring drug testing of prospective employees;
3. any Federal or State “statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security”; or
4. a valid collective bargaining agreement that specifically addresses pre-employment drug testing.

Most notably, nothing in the new law prevents employers from testing their current employees for marijuana or THC, nor does it protect employees who are visibly impaired by marijuana while on the job from being disciplined for such conduct.  

In short, New York City employers who engage in pre employment drug testing should ensure that they (or any third parties with whom they contract) adjust their policies and practices on or before May 10, 2020, so that they cease such testing for marijuana or THC for all persons who do not fall within any of the above exemptions.

Please do not hesitate to contact any of our attorneys if you have any questions regarding these changes or would like assistance reviewing and updating your employment policies.