New York City Council Passes Trailblazing Bill to Ban All Preemployment Marijuana Testing

The New York City Council recently passed a bill that, if signed by Mayor Bill de Blasio, would prohibit most New York City employers from requiring job applicants to submit to drug tests for marijuana use as a condition of employment, with certain exceptions. The bill would amend the New York City Fair Chance Act, which bans New York City employers from asking about job applicants’ criminal records before extending an offer of employment. Supporters view the ban on preemployment marijuana testing as another measure to break barriers to employment based on private behavior. A spokeswoman for Mayor de Blasio suggested that the mayor will likely sign it. It would take effect one year after his signature.

The bill prohibits employers from “require[ing] a prospective employee to submit to testing . . . as a condition of employment.” Laws in other areas of the country, such as Washington D.C., ban marijuana testing until a conditional offer of employment has been made. The New York City bill, however, appears to go a step further and prohibit marijuana testing at any time before hire.
As mentioned, not every employee would be immune from preemployment marijuana testing under the bill. The categories of job-seekers that the bill expressly exempts include: police officers and other law enforcement personnel; construction and demolition site workers; positions requiring a commercial driver’s license; positions requiring the supervision or care of children, medical patients or persons receiving public services by reason of physical or cognitive disabilities; “any position with the potential to significantly impact the health or safety of employees or members of the public;” positions for which marijuana testing is required by federal law, such as for Department of Transportation-regulated employees and employees performing covered work under a federal contract; and positions covered by a valid collective bargaining agreement that specifically provides for such pre-employment drug testing.

Supporters of the bill fear that the list of exemptions may weaken its impact. In particular, the catchall carveout allowing for preemployment marijuana testing of applicants for “any position with the potential to significantly impact the health or safety of employees or members of the public” has the potential to be construed and applied broadly.

Importantly, nothing in the bill would prohibit New York City employers from testing current employees for marijuana. This means that, while certain employees in New York City may not have to submit to testing to obtain employment, they may still be subject to testing to stay employed.
Drug-testing job applicants is nothing new to the American workplace. Since the 1980’s, it has diffused itself across the public and private sectors, becoming a normalized part of the hiring process. However, many employers have reevaluated preemployment marijuana screening because of changing laws and attitudes on cannabis. Legalization of the drug continues to grow – 33 states & Washington D.C. have legalized medical marijuana, and 10 states & Washington D.C. have legalized recreational marijuana. Moreover, current drug testing technology is limited. It only determines that someone consumed cannabis at some undetermined time, often up to 30 days prior to the test. It does not test for current impairment.

There are still several issues for New York City employers to hash out. For instance, can drug-testing applicants who are otherwise exempt from the New York City bill still run afoul of other laws? What positions have the “potential to significantly impact the health or safety of employees or members of the public?” Cautionary tales have budded in surrounding states, including Connecticut, Massachusetts, New Jersey, and Rhode Island, where marijuana users have prevailed in lawsuits against employers for rescinding an offer of employment or terminating employment based on a positive test.

For more information on what your organization can do to ensure compliance with the ever-expanding laws on cannabis in the workplace, please contact Harris S. Freier, Esq. at hfreier@genovaburns.com, or Justine L. Abrams, Esq. at jabrams@genovaburns.com, or at 973-533-0777.