NYC Employers Can No Longer Use Pre-Employment Marijuana Testing to Weed Out Prospective Employees

On April 9, 2019, the New York City Council passed a bill that prohibits employers from conducting pre-employment drug testing for the presence of marijuana or tetrahydrocannabinols (THC). Because New York City Mayor Bill de Blasio neither signed nor vetoed the bill within 30 days of passage, it became law on May 10, 2019. Notably, however, the law does not go into effect until May 10, 2020. Once the law takes effect, employers will be unable to conduct pre-hire marijuana testing as a condition of employment.

The law amends Section 8-107 of the New York City Administrative Code and provides “it shall be an unlawful discriminatory practice” for employers, labor organizations, employment agencies or their agents to require 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, contains a long list of exceptions. For example, the law does not apply to any individuals applying for work: 

• As police officers, peace officers, or positions with law enforcement or investigative functions at the department of investigation
• As laborers, workers, contractors, mechanics or other persons working on a public work site
• In any position that requires compliance with Section 3321 of the NYC Building Code (which requires certain safety measures at building construction sites)
• 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 by Section 488(15) of the New York Social Services Law
• In any position that could “significantly impact the health or safety of employees or members of the public,” as determined by: (i) the Commissioner of Citywide Administrative Services, and identified on the website of the Department of Citywide Administrative services or (ii) the chairperson of the NYC Commission on Human Rights, and identified in regulations promulgated by the commission 

The law also does not apply to drug testing required pursuant to:

• Regulations issued by the United States Department of Transportation and/or the New York State or New York City Departments of Transportation
• Any contracts entered into between the federal government and an employer or grants from the federal government to an employer
• Federal or state statutes, regulations or orders that require drug testing for the purpose of safety or security
• Collective bargaining agreements (although the law is silent as to whether an employer may bargain to include such drug testing in a collective bargaining agreement)

The City is expected to provide further guidance on these exceptions once it issues rules for the law’s implementation.

Notably, by its terms the law applies only to “prospective employees.” At this time, it is unclear what, if any, impact this bill will have on employers’ ability to test for marijuana and THC after an employee is hired. Because it is likely that the City’s anticipated rules will provide additional clarity on this issue, it would be prudent to review guidance from the City to confirm that NYC employers’ policies permitting testing of current employees for marijuana will continue to be lawful.

Next Steps for Employers

We will monitor developments pertaining to the law and provide updated information when the City issues rules or other guidance on the legislation. Because the law does not go into effect until May 10, 2020, employers in NYC may wish to await the City’s guidance before updating hiring and pre-employment screening policies and practices to exclude marijuana and THC testing (save for excepted positions) for prospective employees.

For questions or concerns regarding this Alert, please contact a member of Kramer Levin’s Employment Law Department.