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On April 9, 2019, the New York City Council passed legislation that will prohibit employers from requiring job applicants to submit to pre-employment drug tests for THC (tetrahydrocannabinol), the active ingredient in marijuana, as a condition of employment. Requiring such a pre-employment test will be deemed an unlawful discriminatory practice under the New York City Human Rights Law. The law will take effect on May 10, 2020, giving employers plenty of time to prepare.

There are a number of exceptions to the law. For example, the prohibition on pre-employment drug tests for marijuana will not apply to prospective employees applying for work:

• as a police or peace officer, or in a position with a law enforcement or investigative function at the department of investigation;
• in any position requiring a commercial driver’s license;
• in any position requiring the supervision or care of children, medical patients, or vulnerable persons as defined under the New York Social Services Law; or
• in any position with the potential to significantly impact the health or safety of employees or members of the public, as determined by the City.

Moreover, the law will not apply where any federal or state statute, regulation, or order requires drug testing of prospective employees for purposes of safety or security, or where drug testing is required pursuant to a federal contract between the government and an employer, among other reasons.

To be clear, this law does not give employees the right to work while under the influence of marijuana. Employers can still enforce policies that prohibit employees from performing their job duties while impaired by a controlled substance, which New York’s medical marijuana law, the Compassionate Care Act, specifically provides. Moreover, if, for example, an employer had reasonable suspicion that an employee was impaired while at work, the employer could require that the employee submit to a drug test, including for the presence of marijuana. This new law specifically bans pre-employment drug testing of prospective employees for marijuana as a condition of employment – there is nothing to indicate it also applies to current employees.

At this point, New York City employers can begin considering how this law will affect their drug testing policies and procedures and whether there are any positions in their workforce that would fall under the exceptions to this law.

For more information on the topic discussed, contact:

• Joel A. Klarreich  |  jak@thsh.com  |  212-508-6747
• Jason B. Klimpl  |  klimpl@thsh.com  |  212-508-7529
• Elizabeth E. Schlissel  |  schlissel@thsh.com  |  212-508-6714
• Andrew W. Singer  |  singer@thsh.com  |  212-508-6723
• Stacey A. Usiak  |  usiak@thsh.com  |  212-702-3158
• Andrew P. Yacyshyn  |  yacyshyn@thsh.com  |  212-508-6792