Wednesday, April 17, 2019 On April 9, 2019, New York’s City Council passed legislation, available here, which will prohibit employers from requiring prospective employees to submit to testing for tetrahydrocannabinols (THC), the active ingredient in marijuana, as a condition of employment. If, as expected, Mayor Bill de Blasio signs the law into effect, the New York City Human Rights Law will be amended to make it a discriminatory practice to require pre-employment marijuana testing of employees in New York City. The law will not apply, however, to certain safety-sensitive positions, such as: (i) law enforcement positions; (ii) any position that requires compliance with New York City Building Codes; (iii) any position that requires a commercial driver’s license; (iv) any position that requires the supervision or care of children, medical patients or vulnerable persons; and (v) any position that could significantly impact the health or safety of employees or members of the public. Additionally, the law will not prohibit required drug testing in accordance with: (i) federal, state and local department of transportation regulations; (ii) any contract entered into between the federal government and an employer; (iii) any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; and (iv) any applicant whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants. The law will go into effect one year after it is signed by Mayor Bill de Blasio. In light of the likelihood that this legislation will be signed into law, companies with employees in New York City should review their pre-employment drug-testing policies and procedures to ensure compliance. We will continue to monitor further developments and provide updates once the legislation is signed into law. *Jamie Moelis is a Law Clerk in Sheppard Mullin’s New York office.<doc-sep>In the midst of the growing marijuana decriminalization movement, New York City’s city council has passed a groundbreaking bill that would prevent most employers from requiring job applicants to undergo marijuana drug tests. Authored by public advocate Jumaane D. Williams, the bill would be the first legislation in the country to explicitly prohibit employers from marijuana testing job applicants, the New York Times reports. Though the bill wouldn’t be enacted for at least a year after passage, a spokesperson for Mayor Bill DeBlasio’s administration told the New York Times it had the mayor’s full-throated support. The initiative would apply to private and public employees, though a few groups, such as pilots, truck drivers, construction workers and police officers, would not be exempt from marijuana testing. Employees suspected of smoking marijuana during work hours would also not be exempt from drug testing. According to NORML deputy director Paul Armentano, the legislation, if enacted, would be groundbreaking. “I’m unaware of any other municipality, and certainly not a city the size of New York City, enacting similar legislation limiting the scope of drug screenings and the consequences associated with a positive test result in such a manner,” he told Rolling Stone. Armentano also pointed out that the New York city council passed another bill that would not require people to undergo mandatory marijuana drug testing as a condition for probation or parole. Unlike the employee screening bill, this bill would take immediate effect once signed into law, and is arguably “equally if not more significant,” Armentano said. Although more than 50% of companies require prospective employees to undergo drug tests, according to a poll released by the Society for Human Resource Management, such testing is costly (most employers pay between $31 and $40 per employee for a test) and can also potentially indicate the presence of marijuana for months after use. “A positive test result for cannabis… does not provide any definitive information regarding a subject’s frequency of cannabis use, when he or she last consumed it, or whether one may have been under the influence of the substance at the time the drug screening was administered,” Armentano said. As nationwide marijuana use increases, thus yielding more positive tests, many companies are doing away with mandatory drug testing altogether. Marijuana is still illegal in New York City and New York state. Yet despite recent stalemates, Gov. Andrew Cuomo has actively pushed for statewide legalization, and last month the city council passed a resolution calling to expunge all previous marijuana-related convictions (a move that echoes a similar initiative that San Francisco passed earlier this year). Additionally, there is widespread support for marijuana legalization in New York State, with an estimated 65% supporting the legalization of possession of a small amount of marijuana, according to a Jan. 2019 Quinnipiac University poll.<doc-sep>Politics & Government Marijuana Testing For Job Applicants May Soon Be Banned In NYC Most employers would be banned from requiring job applicants to take a drug test for marijuana under a bill passed Tuesday. Replies (8) New York City may soon ban employers from requiring job applicants to take a drug test for marijuana. (Photo from Shutterstock) NEW YORK — Pot-smoking New Yorkers may not have to worry so much about finding work as the state moves closer to legalizing the drug. The New York City Council passed a bill Tuesday to ban most employers from requiring job applicants to take drug tests for marijuana. The move would put the drug on par with alcohol and scale back a practice that only serves as a barrier to employment for many, said Public Advocate Jumaane Williams, the bill's sponsor. Mayor Bill de Blasio's administration fully backs the bill, a mayoral spokeswoman said. "This is not a permission to come to work high, it is not permission to come to work impaired, but we are not speaking about that," Williams, a Democrat, said Tuesday. "We are speaking about people who are prevented from going to work in the first place." Drug testing is common among private employers and required for some public-sector jobs. Some 57 percent of employers drug-test all job candidates, a 2011 Society for Human Resource Management survey found. But more companies have recently moved away from checking for marijuana because it shuts too many people out of the labor pool amid a glut of openings and the expanding legalization of the drug, the Associated Press reported last year. The council bill would specifically ban most public and private employers from requiring potential employees to take a test for the presence of tetrahydrocannabinols, or THC, the active ingredient in marijuana. The legislation would not apply to a wide range of positions, including police and law-enforcement jobs, gigs requiring the supervision of children and those that need a commerical driver's license. The bill also would not apply to jobs tied to state or federal contracts, as Williams said the city cannot pre-empt state or federal law. Williams said the exceptions grew out of the negotiations to move the legislation forward, but he wants to see them changed in the future. "If you ingest weed in whatever manner a month ago, I'm not sure how that prevents you from doing your job now," he said.<doc-sep>
On April 9, 2019, the New York City Council passed a first-of-its-kind bill that prohibits pre-employment drug testing for the presence of marijuana or tetrahydrocannabinols. Mayor Bill de Blasio is expected to sign the bill into law, which would take effect one year after enactment.1 Significantly, the law would not prohibit employer drug-testing programs that test existing employees for marijuana. The law amends Section 8-107 of the New York City Administrative Code by adding subdivision 31 to specifically prohibit employers, labor organizations, employment agencies, or their agents from requiring prospective employees “to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.” The law, however, does provide certain exemptions. The law does not apply, for example, to any individuals applying for work (a) in law enforcement positions, such as police officers, peace officers, or investigators with the department of investigation; (b) as laborers, mechanics, workers, contractors, or other persons working on a public work site; (c) for any position that requires compliance with Section 3321 of the NYC Building Code; (d) for any position requiring a commercial driver’s license; (e) for any position requiring the supervision or care of children, medical patients, or vulnerable persons as defined by Section 488(15) of the New York Social Services Law; or (f) for any position that could “significantly impact the health or safety of employees or members of the public,” as determined by the Department of Citywide Administrative Services, or identified in regulations issued by the NYC Commission on Human Rights. The law includes exclusions where drug testing of prospective employees is required in accordance with: (a) regulations issued by the United States Department of Transportation and/or the New York State or New York City Departments of Transportations; (b) any contracts or grants from the federal government to an employer; (c) federal or state statutes; or (d) a collective bargaining agreement. Given the number of exclusions to the law, the NYC Council appears to have recognized that such pre-employment drug testing for marijuana and tetrahydrocannabinols is necessary for certain safety-sensitive positions, and those positions where federal, state, or local governments have deemed such testing necessary. The City is expected to provide further clarity once it issues rules for the law’s implementation. Once the law takes effect, covered employers will be unable to conduct pre-hire marijuana testing as a condition of employment. Perhaps anticipating the need to update policies, the NYC Council has provided employers one year in which to come into compliance. It is too early to gauge what, if any, traction employer arguments such as that the NYC law is federally preempted, will have. Nationwide, the law is mixed on that issue. In recent years, however, and particularly in the Northeast, courts have rejected such arguments. At the same time, it bears emphasis that employer drug-testing programs in NYC that test current employees for marijuana continue to be lawful without defined prohibitions or limitations on testing circumstances, as the new NYC law would apply only to “prospective” employees. Of course, under current law, all New York employers must be mindful of the potential application of the New York medical marijuana law and its employment-related protections. Foonotes