Morgan Lewis

Effective May 10, 2020, a new law will preclude most New York City employers from requiring job applicants to submit to testing for the presence of marijuana or tetrahydrocannabinols (THC) as a condition of employment. Employers in New York City are encouraged to revisit their policies or procedures on pre-employment drug testing before the new law becomes effective.

The New Law

New York City Council Bill Int. 1445, which became law on May 10, 2019, amends the New York City Human Rights Law (NYCHRL). Pursuant to this new law, unless an enumerated exception applies or unless otherwise provided by law, it will be an unlawful, discriminatory practice under the NYCHRL for an employer or its agent to require an applicant to submit to testing for the presence of any marijuana or THC in the applicant’s system as a condition of employment.

The new law exempts certain classes of employers and positions, including

  1. police and peace officers;
  2. certain construction workers covered by the New York City Building Code and New York Labor Law;
  3. any position requiring a commercial driver’s license;
  4. any position “requiring the supervision or care of children, medical patients or vulnerable persons” as defined by the New York Social Services Law; and
  5. “any position with the potential to significantly impact the health or safety of employees or members of the public,” pursuant to regulations to be adopted by the Department of Citywide Administrative Services and the New York City Commission on Human Rights (NYCCHR) in advance of the effective date.

Furthermore, the new law explicitly does not apply if drug testing is required pursuant to

  1. federal, state, or city regulations requiring drug testing of transportation workers;
  2. any contract between the federal government and an employer or any grant of financial assistance from the federal government to an employer where drug testing of prospective employees is a condition of receiving the contract or grant;
  3. any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; and
  4. applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses pre-employment drug testing.

Guidance

Given the broad scope of the new law, most private employers in New York City will be precluded from requiring pre-employment marijuana and THC drug tests effective May 10, 2020. The law only addresses drug testing for pre-employment hiring procedures and does not prevent drug testing of any type for current employees. Therefore, if employers have a policy of drug testing current employees, they can continue to include marijuana and THC on those drug tests. Employers also may continue to maintain and enforce policies prohibiting marijuana and THC in the workplace and requiring employees who appear to be under the influence of marijuana or THC at work to submit to a drug test.

Notably, because few industries have broad laws requiring drug testing, the new law appears to apply broadly and unless there is a specific legal requirement to conduct pre-employment drug tests for purposes of safety or security, employers will need to comply with the new law once it becomes effective. This application is in contrast to other recent amendments to the NYCHRL, including the Fair Chance Act, which prohibits running pre-employment background checks of most employees, but carved out positions for which background checks were required pursuant to other applicable law. As Securities and Exchange Commission and Financial Industry Regulatory Authority rules require financial services employers to run pre-employment criminal background checks, that law did not impact many financial services positions. Here, however, there is not a similar rule requiring employers, including financial services and retail employers, to conduct pre-employment drug tests for marijuana or THC. Thus, the new law will apply to most New York City employers and prohibit requiring prospective employees to pass a drug test that includes testing for marijuana or THC.

In advance of the effective date of the new law, employers in New York City are encouraged to revisit their policies or procedures on pre-employment drug testing. Morgan Lewis lawyers are available to answer any questions about the coverage of the new law and implications for employers, and will monitor for guidance from the NYCCHR.

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