New York City Adopts Law Prohibiting Pre-Employment Testing for Marijuana

In New York City, a law was adopted by administrative action today that prohibits many employers, labor organizations, and employment agencies from conducting pre-employment drug testing for marijuana and THC, the active ingredient in cannabis. The law characterizes these drug tests as "an unlawful discriminatory practice." There are, however, numerous exceptions to the prohibition on pre-employment testing for marijuana. It will be permitted for the following employment positions and/or for the following reasons:

• Police/law-enforcement officers;
• Positions requiring construction safety training or OSHA certifications under New York laws;
• Positions requiring commercial driver's licenses;
• Positions involving the supervision or care of children, medical patients, or vulnerable persons as defined under New York laws;
• Other positions with potential to significantly impact health or safety as determined under the regulations to be enacted or identified on the website of the department of citywide administrative services;
• U.S. Department of Transportation required testing;
• Testing required under federal contracts or grants;
• Testing required under federal or state statutes; and
• Testing required under collective bargaining agreements.

The prohibitions contained in the law will become effective one year from today. As such, employers operating in New York City have one year to review and revise their drug-testing policies and procedures to ensure compliance. In the interim, employers would like to have further guidance on compliance measures, as would be the case if the New York City Commission on Human Rights enacts rules providing more clarification on what types of employers and employees will be covered.

Ballard Spahr's Labor and Employment Group routinely advises employers on pre-employment drug testing issues, and helps to update and revise employers' existing policies and procedures to ensure compliance with various state and federal drug testing laws. The Group provides training for managers, supervisors, and HR staff related to these issues.

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