As of Jan. 1, 2022, employers in the City of Brotherly Love are prohibited from requiring job applicants to undergo pre-employment drug testing for marijuana use. The ordinance, referred to as the Prohibition on Testing for Marijuana as a Condition for Employment (Phila. Code § 9-5500), makes it an unlawful employment practice for an employer, labor organization, employment agency or agent thereof to require prospective employees to submit to testing for the presence of marijuana as a condition of their employment.
The law defines marijuana broadly to include all forms or varieties of the genus Cannabis and the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. Though the ordinance’s scope is far reaching in the employment positions covered, the ordinance contains several exceptions to the prohibition, including:
(a) “Police officer or other law enforcement positions;
(b) Any position requiring a commercial driver’s license;
(c) Any position requiring the supervision or care of children, medical patients, [or] disabled or other vulnerable individuals; and
(d) Any position in which the employee could significantly impact the health or safety of other employees or members of the public.”
The law provides that the prohibition also does not apply to drug testing that is required based on:
(a) “Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security;
(b) Any contract between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant; or
(c) Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.”
As this law is now in effect, employers with Philadelphia employees should, if they have not already done so, make sure that marijuana is removed from their pre-employment drug testing panels. Although the law authorizes the Philadelphia Commission on Human Rights to issue regulations for the implementation and administration of this law, to date, no regulations have been issued – but stay tuned here for updates.
Philadelphia joins a growing number of cities and states with similar prohibitions, including New York City, which enacted a similar ban in May 2020 (available here) and the state of Nevada, which enacted a similar ban in June 2020 (available here). We can expect to see similar laws passed in other jurisdictions at state and local levels.
Beyond Philadelphia, employers should consider whether to test prospective employees for marijuana based on the current landscape surrounding marijuana, the fact that marijuana can remain detectable for long periods of time and anti-discrimination protections for users of medical marijuana in certain jurisdictions, among other reasons.
