NYC Council Passes Legislation Barring Pre-employment Marijuana Testing

On April 9, 2019, the New York City legislature passed legislation that would amend Section 8-107 of the New York City Administrative Code to prohibit employers from testing job applicants for marijuana or tetrahydrocannabinols (THC) – the active ingredient in marijuana. Specifically, the law states, “it shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.”

The legislation creates an exception for individuals who apply to specifically defined roles; such as police officers or peace officers, those requiring a commercial driver’s license, those requiring the supervision or care of children, medical patients, or other vulnerable persons, and those with the “potential to significantly impact the health or safety of employees or members of the public.” Furthermore, the law would not apply to drug testing that is required pursuant to: (a) regulations promulgated by the federal department of transportation; (b) federal contracts; (c) a federal or state law, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or (d) a collective bargaining agreement. Lastly, it should be noted that the bill does not bar marijuana testing for existing employees.

While this legislation is the first-of-its-kind, it is not a complete surprise. New York State’s efforts to legalize recreational marijuana have steadily grown over the past several years since the enactment of the Compassionate Care Act in 2014. New York Governor Andrew Cuomo has been pushing for the legalization of recreational marijuana; his efforts to date, however, have been unsuccessful.

The bill is awaiting signature from New York City Mayor, Bill de Blasio, and the Mayor’s administration has already shown outward support for the bill. If signed into law, the legislation would take effect one year from the date of enactment. If passed, the law will certainly impact pre-employment practices for many employers across New York City. In anticipation of enactment, New York City covered employers should begin to review their related hiring practices and consider revising their pre-employment marijuana testing policies to conform to the new law.

If you have any questions regarding this blog, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department.