New York City Council recently passed legislation that prohibits New York City employers from requiring prospective employees to be tested for tetrahydrocannabinols or THC, the active ingredient in marijuana. Notably, the law does not bar employers from testing existing employees for THC. Mayor Bill de Blasio is expected to sign the legislation into law, which will take effect in one year.
Passed by City Council on April 9, 2019, the legislation prohibits most New York City employers from requiring prospective employees to submit to drug testing for THC, but allows for specific exceptions. Employers may test prospective employees for THC if the individual is applying to work in the following capacities:
- Police officer or peace officer;
- Emergency responder;
- Employees involved in the “operation of heavy machinery” (a term which is undefined);
- Employees involved in the operation of a motorized vehicle;
- Employees requiring possession of a security clearance under federal or state law; or
- Any other positions determined by the New York City Department of Citywide Administrative Services.
Further, the legislation will not apply to drug testing required in accordance with:
- Regulations promulgated by U.S. Department of Transportation or the New York State or New York City Departments of Transportation;
- Any contract entered into between the federal government and an employer or any grant or financial assistance from the federal government to an employer that requires such testing;
- Any federal or state statute, regulation or order that requires drug testing of prospective employees for purposes of safety or security; or
- Any collective bargaining agreement.
Employers are encouraged to begin reviewing their hiring and on-boarding processes. Drug and drug testing policies may need to be redrafted to ensure compliance with the coming changes to pre-employment testing for THC, as well as the legalization of marijuana.
Glenn S. Grindlinger and Erika H. Rosenblum; APRIL 2019