Pre-Employment Drug Testing and Marijuana

For decades, many employers have engaged in pre-employment drug testing. Regardless of whether the employer utilized a five-, 10- or 15-panel drug screen, the active ingredient in marijuana, tetrahydrocannabinols (THC), was tested for. Since pre-employment drug testing was allowed under the Americans With Disabilities Act and NYS Human Rights Law, employers were not generally concerned about the legalities of this testing. However, times are changing, and employers must be aware of a newly enacted local law from New York City and proposed state legislation that directly impacts an employer’s ability to conduct pre-employment drug tests for THC.

On April 9, 2019, the Common Council of the City of New York passed a local law that prohibits employers from conducting pre-employment drug testing for marijuana. The law was returned unsigned by the mayor on May 9, 2019 and, therefore, became law on that date. The law is scheduled to go into effect on May 9, 2020. Simply put, the majority of employers in New York City are prohibited from requiring “a prospective employee to submit to testing for the presence of tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.”

The local law contains a few limited classes of employees who are excluded from the local law and can be tested for THC or marijuana:

1. Law enforcement
2. Any position requiring a commercial driver’s license
3. Any position requiring the supervision or care of children, medical patients, or vulnerable individuals
4. Any position with the potential to significantly impact the health or safety of employees or the public as identified by the City of New York
5. Certain positions requiring compliance with §3321 of the NYC Building Code or §220-h of the NYS Labor Law

The local law does not impact drug testing required by:

1. US Department of Transportation standards or similar requirements imposed by NYS or NYC law
2. Any contract between an employer or the federal government that requires drug testing
3. Any federal grant an employer may have that requires drug testing
4. Any state or federal law, regulation, or order that requires drug testing of prospective employees for security or safety purposes
5. Any applicant whose prospective employer is a party to a valid collective bargaining agreement that specifically requires the testing of an applicant for THC.

Apparently taking the lead from the NYC local law, the NYS Assembly has introduced similar legislation. If enacted, the same prohibitions would apply statewide. In short, employers in New York City must modify their drug testing policies before May 9, 2020, and non-NYC employers should realize the same prohibitions may be heading their way soon.

If you have questions regarding the content of this alert, please contact Michael Sciotti, partner, at msciotti@barclaydamon.com or another member of the firm’s Cannabis Team.