As of May 10, New York City employers are no longer allowed to test job applicants for marijuana or tetrahydrocannabinols (THC), the psychoactive ingredient of the cannabis plant. Enacted into law by the New York City Council on May 10, 2019, the testing ban was explicitly made effective one year from its passage. The testing ban, however, doesn’t prohibit an employer from testing current employees for marijuana use, nor does it limit an employer’s ability to ensure workplaces remain drug-free through policies, discipline, and other measures.
There are also some important exceptions to the newly effective testing ban of job applicants. Employers may continue to screen applicants applying for certain types of jobs, including, among others, law enforcement positions, jobs requiring a commercial driver’s license, and those positions involving the supervision or care of children, medical patients, and vulnerable individuals.
The law also carves out exceptions for testing required by federal or state law. Drug testing required for workers in the federally regulated transportation industry isn’t affected by the ban, nor is testing required under federal grants where testing is a condition of the grant. In a similar vein, an employer may continue to test job applicants for marijuana or THC where required by any federal or state law “for purposes of safety or security.” And an employer who is a party to a collective bargaining agreement may continue to test where the agreement “specifically addresses the pre-employment drug testing” of job applicants.
On July 24, a rule adopted by New York City Commission on Human Rights went into effect, clarifying and expanding the list of exceptions to the testing ban. Under the new rule, certain positions are “deemed to significantly impact the health or safety of employees or members of the public” and are exempt from the testing prohibition. These exempt positions include those requiring work on an active construction site or on power and gas utility lines or those entailing the regular operation of heavy machinery or motor vehicles. Job positions involving aircraft maintenance and operation are similarly exempt.
Finally, the rule has a catch-all provision exempting job applicants from the testing ban for any position where drug impairment would pose an immediate risk of death or serious harm to the employee or others.
If you have any questions regarding the content of this alert, please contact Patty Naughton, partner, at pnaughton@barclaydamon.com; Michael Sciotti, partner, at msciotti@barclaydamon.com; or another member of the firm’s Cannabis Team.