On April 9, 2019, New York’s City Council passed legislation, available here, which will prohibit employers from requiring prospective employees to submit to testing for tetrahydrocannabinols (THC), the active ingredient in marijuana, as a condition of employment. If, as expected, Mayor Bill de Blasio signs the law into effect, the New York City Human Rights Law will be amended to make it a discriminatory practice to require pre-employment marijuana testing of employees in New York City.
The law will not apply, however, to certain safety-sensitive positions, such as: (i) law enforcement positions; (ii) any position that requires compliance with New York City Building Codes; (iii) any position that requires a commercial driver’s license; (iv) any position that requires the supervision or care of children, medical patients or vulnerable persons; and (v) any position that could significantly impact the health or safety of employees or members of the public.
Additionally, the law will not prohibit required drug testing in accordance with: (i) federal, state and local department of transportation regulations; (ii) any contract entered into between the federal government and an employer; (iii) any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; and (iv) any applicant whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.
The law will go into effect one year after it is signed by Mayor Bill de Blasio. In light of the likelihood that this legislation will be signed into law, companies with employees in New York City should review their pre-employment drug-testing policies and procedures to ensure compliance. We will continue to monitor further developments and provide updates once the legislation is signed into law.
*Jamie Moelis, a Law Clerk in Sheppard Mullin’s New York office, co-authored this post.