It’s time for New York City employers to reconsider their pre-employment drug testing policies. On April 9, 2019, the New York City Council (“Council”) passed a bill by a 40-to-4 vote that would prevent most employers from requiring pre-employment drug testing for marijuana. This bill is the city’s latest efforts in a series of steps to legalize marijuana.
If this drug-screening bill is signed into law by Mayor Bill De Blasio, drug testing job applicants for marijuana as a condition of employment would become an unlawful discriminatory practice, and New York City would join Washington D.C., which also bars employers from testing for marijuana before a job offer is extended. It should be noted that this bill appears to prohibit drug testing for marijuana at any point before an applicant is hired.
Employers should note that certain categories of employment, primarily areas of employment involving public safety, would be exempt from the law, including: (i) law enforcement personnel; (ii) positions requiring the supervision or care of medical patients, people with disabilities, or children; and (iii) individuals working on construction sites. Applicants for positions subject to federal or New York State’s jurisdiction, meaning federal and state employees, or pilots, truck drivers and contractors, would also be exempt from this law. In addition, the bill also sets forth that the Commissioner of Citywide Administrative Services would be permitted to make exceptions for positions of employment with the potential to significantly impact the health or safety of employees or members of the public. Further, collective bargaining agreements containing pre-employment drug-testing provisions and federal and state regulations, grants or contracts requiring pre-employment drug-testing provisions would be unaffected by the new law.
Proponents of the bill argue that pre-employment drug testing for marijuana not only invades a potential applicant’s privacy but also impedes employment when there is little evidence to support the correlation between future employee performances and passing a pre-employment drug test. Those who oppose the bill view the legislation as overreaching and unreasonably interfering with the private employers’ discretion when hiring screening potential job applicants.
If Mayor De Blasio signs the bill into law, the law will take effect one year following its enactment.