Pre-Employment Marijuana Drug Testing Goes Up in Smoke in NYC

BY DANIEL GOMEZ-SANCHEZ, DALE L. DEITCHLER, and NANCY N. DELOGU ON APRIL 10, 2019

On April 9, 2019, the New York City Council passed a first-of-its-kind bill that prohibits pre-employment drug testing for the presence of marijuana or tetrahydrocannabinols. Mayor Bill de Blasio is expected to sign the bill into law, which would take effect one year after enactment.¹ Significantly, the law would not prohibit employer drug-testing programs that test existing employees for marijuana.

The law amends Section 8-107 of the New York City Administrative Code by adding subdivision 31 to specifically prohibit employers, labor organizations, employment agencies, or their agents from requiring prospective employees "to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee's system as a condition of employment." The law, however, does provide certain exemptions.

The law does not apply, for example, to any individuals applying for work (a) in law enforcement positions, such as police officers, peace officers, or investigators with the department of investigation; (b) as laborers, mechanics, workers, contractors, or other persons working on a public work site; (c) for any position that requires compliance with Section 3321 of the NYC Building Code; (d) for any position requiring a commercial driver's license; (e) for any position requiring the supervision or care of children, medical patients, or vulnerable persons as defined by Section 488(15) of the New York Social Services Law; or (f) for any position that could "significantly impact the health or safety of employees or members of the public," as determined by the Department of Citywide Administrative Services, or identified in regulations issued by the NYC Commission on Human Rights.

The law includes exclusions where drug testing of prospective employees is required in accordance with: (a) regulations issued by the United States Department of Transportation and/or the New York State or New York City Departments of Transportations; (b) any contracts or grants from the federal government to an employer; (c) federal or state statutes; or (d) a collective bargaining agreement.

Given the number of exclusions to the law, the NYC Council appears to have recognized that such pre-employment drug testing for marijuana and tetrahydrocannabinols is necessary for certain safety-sensitive positions, and those positions where federal, state, or local governments have deemed such testing necessary. The City is expected to provide further clarity once it issues rules for the law's implementation.

Once the law takes effect, covered employers will be unable to conduct pre-hire marijuana testing as a condition of employment. Perhaps anticipating the need to update policies, the NYC Council has provided employers one year in which to come into compliance.

It is too early to gauge what, if any, traction employer arguments such as that the NYC law is federally preempted, will have. Nationwide, the law is mixed on that issue. In recent years, however, and particularly in the Northeast, courts have rejected such arguments. At the same time, it bears emphasis that employer drug-testing programs in NYC that test current employees for marijuana continue to be lawful without defined prohibitions or limitations on testing circumstances, as the new NYC law would apply only to "prospective" employees. Of course, under current law, all New York employers must be mindful of the potential application of the New York medical marijuana law and its employment-related protections.

Posted: April 15, 2019

¹The bill passed the City Council on a 41-4 vote. Even if the mayor were to veto the bill, the Council would be able to override the veto by a two-thirds vote, which is at least 34 members.