New York City Bans Pre-Employment Testing for Marijuana

New York City Bans Pre-Employment Testing for Marijuana

In April, the New York City Council passed a bill that would prohibit employers from requiring candidates to undergo testing for marijuana as a condition of employment, becoming one of the first jurisdictions to grant employment-specific protections to marijuana users. Mayor Bill de Blasio, who expressed support for the bill, did not sign or veto it within 30 days of its passage, so it became law on May 10 and will come into effect a year from that date, according to Seyfarth Shaw’s marijuana law blog.

The new law includes exemptions for certain safety-sensitive occupations, including law enforcement, construction, medical and child care, and jobs requiring a commercial driver’s license. It also does not apply to federal and state employees or contractors, nor does it override federal regulations governing transportation workers such as truck drivers and pilots. Employees can still be subjected to marijuana testing if they appear intoxicated at work.

New York State legalized marijuana for medicinal use in 2014; recreational use of the drug remains illegal, but the state legislature is considering a legalization bill, which governor Andrew Cuomo has said he intends to pass and sign in this legislative session. In New York City, De Blasio supports legalization, while the NYPD announced last year that it would stop arresting most people caught smoking marijuana in public. Given that this pledge was central to Cuomo’s re-election campaign platform in 2018, it is likely that New York will soon join the growing number of US jurisdictions where recreational marijuana is legal, including Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington state, as well as Washington, DC.

These states’ marijuana laws raise a number of employment issues, which are just starting to be hashed out in the courts. Most of these laws explicitly state that employers do not have to accommodate the use or possession of marijuana in the workplace, but also prohibit them from taking adverse action against employees on the basis of their legal marijuana use while off the clock. This makes the issue of terminating employees based on a failed drug test more complicated, as the current testing protocol for marijuana is not precise enough to determine whether a user is presently under the influence or used marijuana several days or weeks ago. The Massachusetts Supreme Judicial Court ruled in 2017 that an employee fired on that basis was unfairly dismissed.

The evolving patchwork of legal statuses for marijuana is top of mind for US employers: In Littler’s annual employer survey this year, 54 percent of employers identified marijuana legalization as among their greatest compliance challenges, second only to state and local paid sick leave mandates. The 2019 Quest Diagnostics Drug Testing Index, released in April, found that rates of positive marijuana tests among US employees continued to rise steadily last year, with 2.8 percent of employees testing positive for it in 2018, against 2.6 percent in 2017 and 2.4 percent in 2014. Opioid positivity, however, saw the largest decline in three years.

This post is published for informational purposes only and does not constitute legal advice or an opinion on the legal matters discussed within. Employers should consult their general counsel whenever they have questions pertaining to laws, regulations, or potential liabilities.