Hail Mary (Jane): New York City Weeds Out Pre-Employment Marijuana Testing on May 10

New York City’s ban on pre-employment drug testing for marijuana goes into effect this weekend, on May 10, 2020. The law makes it an “unlawful discriminatory practice” to require a prospective employee to submit to testing for the presence of marijuana or tetrahydrocannabinols (“THC”), the psychoactive ingredient in marijuana, as a condition of employment. The law applies to employers, employment agencies, labor organizations, and agents of a covered entity.

Pre-employment marijuana screening will still be permissible certain safety-related positions. This includes police officers, peace officers or other jobs with law enforcement or investigative functions at the department of investigation, positions requiring compliance with Section 3321 of the NYC Building Code (construction safety training) or Section 220-h of the New York Labor Law (OSHA construction safety and health course), and CDL drivers. Further, covered employers may still conduct pre-employment marijuana screening for positions involving the supervision or care of children, medical patients, or vulnerable persons. The law also permits pre-employment marijuana testing for the following reasons:

• U.S. Department of Transportation requires testing;
• The testing is required pursuant to a federal contract or grant;
• The testing is required pursuant to a federal or state statute;
• The testing is required by a collective bargaining agreement; or
• The position has a “potential to significantly impact health or safety of employees or members of the public,” as identified by specified city authorities.

The New York City Commission on Human Rights promulgated proposed amendments to the Official Compilation of the Rules of the City of New York that shed light on the meaning of the exception for testing “positions with potential to significantly impact health or safety.” Significantly, the proposed rules clarify that a “potential to significantly impact health or safety” exists when:

• The position requires that an employee regularly, or within one week of beginning employment, work on an active construction site;
• The position requires that an employee regularly operate heavy machinery;
• The position requires that an employee regularly work on power or gas utility lines;
• The position requires that an employee operate a motor vehicle on an approximately daily basis; or
• Impairment would interfere with the employee’s ability to take adequate care in the carrying out of his or her job duties and would pose an immediate risk of death or serious physical harm or the employee or to other people.

In addition, the proposed rules stipulate that a “significant impact on health and safety” does not include concerns that a positive test for THC or marijuana indicates a lack of trustworthiness or lack of moral character. On April 16, 2020, the NYC Council held an online hearing to accept public comments on the proposed rules. In light of difficulties that COVID-19 may have posed for certain members of the public seeking to provide comment on the proposed rules, the deadline to submit written comments was extended to April 27, 2020. The proposed rules are not yet in effect.

Employers in New York City are encouraged to update handbooks and policies relating to drug testing in light of this significant change. Importantly, the law only applies during pre-employment and does not affect drug testing of current employees.

New York City’s law is the second of its kind in the country. On January 1, 2020, Nevada enacted a law that prohibits an employer from denying a prospective employee a job based on the presence of marijuana in a pre-employment drug test. Nevada’s law carves out exceptions for certain safety-sensitive positions. Specifically, the law does not apply to prospective firefighters, emergency medical technicians, positions that require an employee to operate a motor vehicle and state or federal law requires the employee to submit to drug screening tests, and positions that “in the determination of the employer, could adversely affect the safety of others.” While the law allows employers to determine whether a position is safety-sensitive, this catch-all provision is untested and unclear.

The Nevada law also sets forth additional requirements for employers that require drug testing shortly after an employee is hired. Specifically, for tests administered during the first 30 days of employment, employees have the right to rebut a test result that detects the presence of a controlled substance or drug. To rebut the results of the initial test, the employee may submit to a second test at the employee’s expense. Employers are required to “accept and give appropriate considerations to the results” of the second test. Finally, the Nevada law does not apply if it is inconsistent or in conflict with an employment contract, employee bargaining agreement, federal law, or when the position in question is funded by a federal grant.

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 Katherine E. Stuart, Esq. at kstuart@genovaburns.com, or at 973-533-0777.