A Philadelphia ordinance prohibiting employers from testing applicants for marijuana as a condition of employment is set to take effect January 1, 2022. The ordinance, which was passed by the Philadelphia City Council and signed into law April 28, 2021, by Mayor Jim Kenney, amends Title 9 of the Philadelphia Code (titled “Regulation of Businesses, Trades and Professions”) by adding Chapter 9-4700. “Marijuana” is defined broadly to include all forms or varieties of cannabis, including “every compound … derivative … or preparation of the plant.”

There are a few, limited exceptions to the prohibition on pre-hire marijuana testing. Specifically, pre-hire marijuana testing is permitted for candidates applying for a position as a police officer or in another law enforcement position, any position requiring a commercial driver’s license, and any position requiring the supervision or care of children, medical patients, those with disabilities, or other vulnerable adults. Additionally, the ordinance does not apply to drug testing required by:

• Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security.
• 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.
• A collective bargaining agreement that specifically addresses pre-employment drug testing.

The ordinance also contains a safety-sensitive exception, which applies to “any position in which the employee could significantly impact the health or safety of other employees or members of the public.” The ordinance currently does not provide any information on the types of positions that will qualify for this exception; however, it states that the city will publish regulations to address this issue.

With respect to which employers the ordinance applies to, several chapters of the Philadelphia Code contain separate definitions of “employer” to identify which employers are covered by that chapter. There is no definition of employer in the ordinance (Chapter 9-4700); however, the regulations may include a definition that clarifies whether the ordinance applies to all employers in the city of Philadelphia or only to employers with a certain number of employees.

As of the date of this article, the regulations have not yet been published.

EXISTING EMPLOYMENT PROTECTIONS FOR MARIJUANA USERS

Before enacting the ordinance, the city of Philadelphia did not regulate a private employer’s discretion to test applicants or employees for any substance, including marijuana. Philadelphia employers were, however, subject to Pennsylvania’s Medical Marijuana Act, which became effective in 2016 and which generally requires employers to accommodate an applicant or employee’s off-duty use of medical marijuana, unless the accommodation would create a safety risk.

Philadelphia’s ordinance increases the protections for medical marijuana cardholders by ensuring that their cardholder status will not impact their eligibility for hire, unless an exception applies. The ordinance also aligns with the city’s decision to decriminalize marijuana in 2014.

PENALTIES

The ordinance does not identify a specific penalty associated with violating the law. However, violations of any provision of the Philadelphia Code for which there is no specific penalty expose the violating party to a fine of $150 to $300. Repeat offenders are subject to an additional fine of up to $300 per violation, or imprisonment for up to 90 days.

TAKEAWAYS FOR EMPLOYERS

Philadelphia employers should prepare for the ordinance’s January 1, 2022, effective date by reviewing their pre-hire drug testing policies. Employers should also monitor for the city’s forthcoming regulations and evaluate which positions may qualify for applicable exemptions.

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