The ban on pre-employment testing for marijuana recently approved by the New York City Council has become law.
The ordinance forbids New York City employers from requiring prospective employees to submit to testing for the presence of any tetrahydrocannabinols (THC), the active ingredient in marijuana, as a condition of employment unless an exemption applies. The ordinance applies to labor organizations, employment agencies, or their agents.
The testing ban goes into effect on May 10, 2020.
Who is impacted by the ban
The law affects public and private employers in New York City, including companies with headquarters elsewhere, Jumaane D. Williams, the city’s public advocate and the bill’s sponsor told the New York Times. He also said it is unclear how many employers in the city screen for drugs. Williams’ office did not respond to a request for more information.
The measure, which has been described as “groundbreaking,” is one of a small number of bans on pre-employment drug testing and may be the first to be put into place by a large American city.
Writing for SHRM, Jim Reidy, an employment lawyer, said Maine prohibits employers from testing for marijuana at the pre-employment stage and from discharging an employee for an initial positive drug test.
The New York City law is part of an effort to reduce the legal consequences of marijuana use. But many employers across the nation are dropping or rethinking pre-employment drug testing because they don’t want to eliminate candidates for hard to fill jobs.
The bill became law without Mayor de Blasio’s signature. The mayor neither signed the bill nor did he veto it within the 30-days required by city charter, so the bill became law on May 10, 2019.
“We need to be creating more access points for employment, not less and as we move toward legalization, it makes absolutely no sense that we’re keeping people from finding jobs or advancing their careers because of marijuana use.”
Exemptions to the drug ban
The ordinance provides a number of exclusions. The largely apply to safety and security sensitive jobs, and those tied to a federal or state contract or grant.
Specifically, the exemptions include:
- police officers or peace officers, or other law enforcement positions;
- any position requiring compliance with New York City’s building code or labor law;
- any position requiring a commercial driver’s license;
- any position requiring the supervision or care of children, medical patients or vulnerable persons;
- any position with the potential to significantly impact the health or safety of employees or members of the public.
The local law does not apply to drug testing requirements:
- under federal, state or city department of transportation regulations that requires testing of a prospective employee with respect to intrastate commerce;
- any contract entered into between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant;
- any federal or state statute, regulation, or order that requires drug testing of prospective employees for safety or security;
- or any applicants whose prospective employer is a party to a collective bargaining agreement that specifically addresses the pre-employment drug testing of applicants.
Federal and state workers are not affected because they are not under the city’s jurisdiction.
Current employees may be tested for marijuana.
Opposition to the ban
Some defend pre-employment testing as a way to “root out prospective workers whose drug use could lead to impaired judgment, lower productivity and higher absentee rates,” Melissa J. Osipoff, a lawyer at the employment law firm Fisher Phillips, told The New York Times.
But proponents of the ban say there’s little evidence that passing a drug screen is a reliable predictor of an employee’s job performance.
“We need to be creating more access points for employment, not less and as we move toward legalization, it makes absolutely no sense that we’re keeping people from finding jobs or advancing their careers because of marijuana use. This legislation, like the Fair Chance Act before it, is good for both employers and prospective employees. It expands the pool of applicants by preventing people from being shut out,” Williams said in a statement.
In 2015, the city passed the “Fair Chance Act,” that bars most employers from inquiring about or considering the criminal history of job applicants after extending conditional offers of employment.
Drug screening trends nationwide
More than one-half of employers (57%) conduct drug tests on all job candidates, according to a 2011 study conducted by the Society for Human Resource Management (SHRM) and commissioned by the Drug and Alcohol Testing Association (DATIA). Most employers that drug test job candidates have done so for seven years or more (69%). Twelve percent have used them for five to six years, the study indicates.
As the legalization of marijuana continues, American workers are testing positive for marijuana in increasing numbers.
Quest Diagnostics, one of the nation’s largest medical testing companies, says drug use – which includes, cocaine, methamphetamine and marijuana — by the American workforce is at a 10-year high, according to a 2018 analysis. The company said 2.3% tested positive for marijuana use in 2018, up from 2% a year earlier.
Meanwhile, experts recommend that employers — regardless of their location — review and update their marijuana workplace policy.
This article is intended only for informational purposes. It is not a substitute for legal consultation. While we attempt to keep the information covered timely and accurate, laws and regulations are subject to change.